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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


£0e  $)orn6oofi  §^mt$ 

Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows : 

1.  A  succinct  statement  of  leading  principles  in  black- 

letter  type. 

2.  A  more  extended  commentary,  elucidating  the  princi- 

ples. 

3.  Notes  and  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75  per  volume,  including  delivery. 

Bound  in  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.     (3d  Ed.) 

2.  Clark's  Criminal  Law.     (2d  Ed.) 

3.  Shipman's  Common-Law  Pleading.     (2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.) 

5.  Black's  Constitutional  Law.     (2d  Ed.) 

6.  Fetter  on  Equity. 

7.  Clark  on  Criminal  Procedure. 

8.  Tiffany  on  Sales.     (2d  Ed.) 

9.  Glenn's  International  Law. 

10.  Jaggard  on  Torts.     (2  vols.) 

11.  Black  on  Interpretation  of  Laws. 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith's  Elementary  Law. 

14.  Hale  on  Damages. 

15.  Hopkins  on  Real  Property. 

16.  Hale  on  Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations. 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on  Corporations.     (2d  Ed.) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence.     (2d  Ed.) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on  Wills. 

28.  Vance  on  Insurance. 

29.  Ingersoll  on  Public  Corporations. 

30.  Hughes  on  Federal  Jurisdiction  and  Procedure. 

31.  Chiids  on  Suretyship  and  Guaranty. 

In  preparation :     Handbooks  of  the  law  on  other  subjects  to  be  announced 
later. 

Published  and  for  sale  by 
WEST  PUBLISHING  CO.,  ST.  PAUL,  MINN. 


C.")8.-„-,b 


HANDBOOK 


OF 


ADMIRALTY   LAW 


By  ROBERT  M.  HUGHES,  M.  A. 

Of  the  Norfolk  (Va.)  Bar 


St.  Paul,  Minn. 

WEST  PUBLISHING  CO. 

1901 


1901 


Copyright,  1901, 

BY 

WEST  PUBLISHING   CO. 


This  volume  is  respectfully  dedicated  to 
Hon.  Nathan  Goff, 

A  genial  and  noble  man, 
An  urbane,  upright, 
and  able  judge. 

(v)» 


734023 


PREFACE. 


The  germ  of  this  treatise  is  a  series  of  lectures  on  ad- 
miralty law,  which  the  author  has  been  giving  to  the  senior 
law  class  at  Washington  and  Lee  University  for  the  past 
few  years.  His  experience  there  has  emphasized  the  need 
of  a  text-book  on  marine  law.  Probably  the  lack  of  such  a 
text-book  is  the  explanation  of  the  scant  attention  given  to 
the  subject  in  the  law  schools ;  but  its  constantly  increasing 
importance  seems  now  to  demand  more  elaborate  treat- 
ment than  it  has  heretofore  received.  This  is  especially 
true  in  view  of  the  recent  important  legislation  bearing  up- 
on the  subject,  and  its  intimate  connection  with  many  other 
topics  which  are  usually  treated  more  fully,  such  as  the  law 
of  carriers  and  the  general  substantive  law  in  relation  both 
to  contracts  and  to  torts.  To  meet  the  need  of  such  a  text- 
book, this  treatise  has  been  prepared.  It  is  intended  to  be 
elementary,  and  is  so  arranged  that  those  schools  which 
give  but  slight  attention  to  the  subject  of  admiralty  can  use 
it  by  omitting  certain  chapters,  and  those  which  desire  to 
give  it  more  emphasis  can  supplement  the  text  by  the  use 
of  the  table  of  leading  cases,  which  are  printed  in  large 
capitals  throughout  the  book,  and  for  which  a  special  index 
has  been  prepared,  giving  an  outline  of  the  points  passed 
upon  by  them. 

The  author  hopes,  also,  that  the  book  will  be  found  use- 
ful to  the  very  large  class  of  general  practitioners  who 
wish  to  be  in  position  to  answer  ordinary  routine  questions 
of  admiralty  law  arising  in  practice.  The  failure  of  the  law 
schools  to  treat  this  subject  at  any  length  results  in  the 
failure  of  the  young  bar  generally  to  know  anything  about 

(vii) 


Vlll  PREFACE. 

it  when  they  first  commence  to  practice.  It  is  hoped  that 
this  book  will  enable  them  to  acquire  a  bird's  eye  view  of 
the  subject  during  those  leisure  hours  which  usually  fall 
heavily  upon  the  younger  practitioner,  and  that  it  will  also 
enable  the  more  experienced  general  practitioners  who  do 
not  make  a  specialty  of  admiralty  to  advise,  at  least  on  cur- 
rent questions,  without  the  necessity  of  consulting  a  special- 
ist. 

In  view  of  the  elementary  character  of  the  work,  the  au- 
thor cannot  hope  that  the  specialist  in  admiralty  will  find 
anything  novel  in  his  treatment  of  the  subject,  unless,  per- 
haps, in  one  or  two  chapters  where  the  law  is  not  yet  crys- 
tallized into  very  definite  shape, — such  as  the  chapter  on 
death  injuries  and  the  chapter  on  the  subject  of  damages, — 
and  where  the  author's  views  may  be  of  interest.  At  the  same 
time,  it  is  believed  that  the  insertion  in  the  appendix  or  in 
the  main  text  of  practically  all  the  statutes  which  the  ad- 
miralty practitioner  usually  needs  will  make  it  a  useful  vade 
mecum,  obviating  the  necessity  of  handling,  either  in  the 
office  or  at  court,  the  cumbrous  volumes  in  which  these 
statutes  are  found.  A  list  of  the  acts  printed  in  full  will  be 
found  in  the  index  under  the  title  "Statutes." 

The  author  begs  leave  to  express  his  acknowledgments 
to  many  friends  for  suggestions  and  aid.  He  also  wishes  to 
acknowledge  publicly  the  numerous  courtesies  received  at 
the  hand  of  the  publishers. 


TABLE  OF   CONTENTS. 


CHAPTER  I. 

OF   THE   ORIGIN   AND   HISTORY   OF   THE   ADMIRALTY  AND 
ITS  EXTENT  IN  THE  UNITED  STATES. 

Section  Page 

1.  Origin  and  History 1-4 

2.  The  Admiralty  Classics 4-7 

3.  The  Colonial  Admiralty  Jurisdiction,  and  Constitu- 

tional Grant  of  "Admiralty  and  Maritime  Juris- 
diction"      7-8 

4.  The  Waters  Included 8-12 

5.  The  Craft  Included 12-15 


CHAPTER  II. 

OF  THE  ADMIRALTY  JURISDICTION  AS  GOVERNED  BY  THE 
SUBJECT-MATTER. 

6.  Cases  in  Contract  and  Cases  in  Tort 16-20 

7.  Tests  of  Jurisdiction 16-20 

8-10.     Contracts  of  Seamen 20-25 

11.     Master's  Right  to  Proceed  in  Rem  for  His  Wages  25-27 

12-19.     Pilotage    28-38 

CHAPTER  III. 

OF  GENERAL  AVERAGE  AND  MARINE  INSURANCE. 

20.  "General  Average"  Defined 39-41 

21.  Requisites  of  General  Average 41—47 

22.  "Marine  Insurance"  Defined 47 

23.  Maritime  Character  of  Contracts 4S 

24.  Insurable  Interest 4S-51 

25.  Conditions  in  Contracts  of  Insurance 51-55 

2<1.             Misrepresentation  and  Concealment 51-55 

HUGHES.AD.  (ix) 


X  TABLE    OF    CONTENTS. 

Section  Page 

27.  Seaworthiness    56-60 

28.  Deviation   60-63 

29.  Illegal    Traffic 63-66 

30.  The  Policy  and  its  Provisions  as  to  Risk  and  Per- 

ils Insured  against 66-70 

31.  Perils  of  the  Seas 70-72 

32.  Barratry  72^73 

33.  Thefts    73-74 

34.  All  Other  Perils 74-75 

35.  Proximate  Cause  of  Loss 75-78 

36.  The  Loss— Total  or  Partial 78-80 

37.  Actual  or  Constructive 78-80 

38.  Abandonment   80-82 

39.  Agreed    Valuation 82-84 

40.  Subrogation  of  Insurer 84 

41.  Suing  and  Laboring  Clause 85-S6 

CHAPTER  IV. 

OF  BOTTOMRY  AND  RESPONDENTIA;    AND  LIENS  FOR  SUP- 
PLIES, REPAIRS,  AND  OTHER  NECESSARIES. 

42.  "Bottomry"   Defined 87-89 

43.  Requisites  of  Bottomry  Bond 89-90 

44.  Respondentia    90-91 

45.  Supplies,  Repairs,  and  Other  Necessaries 91-92 

46.  "Material  Man"  Defined 91-92 

47.  Necessaries  Furnished  in  Foreign  Ports 92-96 

48.  "Necessaries"   Defined 96-98 

49.  Necessaries  Furnished  Domestic  Vessels 98-103 

50.  Domestic  Liens  as  Affected  by  Owner's  Pres- 

ence     103-105 

51.  Shipbuilding    Contracts 106-108 

52.  Vessels  Affected  by  State  Statutes 10S-112 

CHAPTER  V. 

OF  STEVEDORES'  CONTRACTS,  CANAL  TOLLS,  AND  TOWAGE 
CONTRACTS. 

53.  Stevedores'  Contracts— "Stevedore"  Defined 113-115 

54.  Maritime  Character  of  Contracts,   and  Liens 

on  Foreign  and  Domestic  Vessels 113-115 


TABLE    OF    CONTENTS.  XI 

Section  Page 

55.  Privity  of  Contract  Necessary  to  Lien 115-116 

56.  Canal  Tolls 116-117 

57.  Towage — "Service"    Defined 117-119 

58-59.  Responsibility  as  between  Tug  and  Tow 119-122 

60.  Degree  of  Care  Required  of  Tug 123-124 

61.  For  Whose  Acts  Tug  or  Tow  Liable 124 

CHAPTER  VI. 

OF  SALVAGE. 

62.  Nature  and  Grounds 125-126 

63.  "Salvage"  Defined — Elements  of  Service 127-133 

64.  The  Award— Amount  in   General 133-134 

65.  Elements  of  Compensation  and  Bounty 134-137 

66.  Incidents  of  the  Service 137-140 

67.  Salvage  Contracts 140-141 

68.  Salvage   Apportionment 141-142 

69.  Salvage  Chargeable  as  between  Ship  and  Cargo..  .142-143 

CHAPTER  VII. 

OF  CONTRACTS  OF  AFFREIGHTMENT  AND  CHARTER 
PARTIES. 


70-72.     "Contracts  of  Affreightment"  Defined,  and  Distin- 
guished from  Charter  Parties 144—145 

73.  Warranties  Implied  in  Contracts  of  Affreightment 

against  Unseaworthiness  aud  Deviation 145-146 

74.  Mutual  Remedies  of  Ship  and  Cargo  on  Contracts 

of    Affreightment 146-147 

75.  Entirety  of  Affreightment  Contract 147-14S 

76.  Apportionment  of  Freight 148-149 

77-78.     Ship  as  Common  Carrier 149-150 

79.  Bill  of  Lading— Making  and  Form  in  General 150-151 

80.  Negotiability    151-152 

81.  Exceptions  in  General 153 

82.  Exception  of  Perils  of  the  Sea 154-155 

83.  "Charter  Tarties"  Defined 155-157 

84.  Construction  of  Charter  Parties 157-159 

85.  Conditions  Implied  in  Charter  Parties  of  Seaworth- 

iness and  against  Deviation 159-161 


Xll  TABLE    OF    CONTENTS. 

Section  Page 

86.  Can  epilation  Clause  in  Charter  Parties 161-162 

87.  Loading   under    Charter  Parties 162-163 

88.  Execution  of  Necessary  Documents  under  Charter 

Parties    164-163 

89.  Cesser  Clause  in  Charter  Parties 165 

CHAPTER  VIII. 

OF  WATER  CARRIAGE  AS  AFFECTED  BY  THE  HARTER  ACT 
OF  FEBRUARY  13,  1893  (27  Stat.  445). 

90-91.     Policy  of  Act 166-169 

92.  Act  Applicable  Only  between  Vessel  Owner  and 

Shipper    169-172 

93.  Vessels  and  Voyages  to  Which  Act  is  Applicable.  .172-173 

94.  Distinction  between  Improper  Loading  and  Negli- 

gent   Navigation 173-176 

95.  Necessity  of   Stipulation  to  Reduce  Liability  for 

Unseaworthiness   176-177 

CHAPTER  IX. 

OF  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT. 

96-97.     The  Waters   Included,  and  Wharves,    Piers,   and 

Bridges    178-180 

98.  Torts,  to  be  Marine,  must  be  Consummate  on  Wa- 

ter     180-182 

99.  Torts   may  be   Marine  though   Primal   Cause   on 

Land    182 

100.  Detached  Structures  in  Navigable  Waters 182-183 

101.  Torts  Arising  from  Relation  of  Crew  to  Vessel  or 

Owner    183-186 

102.  Personal  Torts  Arising  from  Relation  of  Passen- 

gers to  Vessel 186-187 

103.  Obligations  to  Persons  Rightfully  on  Vessel,   but 

Bearing  No  Relation  to  It 187-189 

104.  Liability  as  between  Vessel  and  Independent  Con- 

tractor     1S9-191 

105.  Doctrine  of  Imputed  Negligence 192 

106.  Assaults,    etc 192-193 

107.  Doctrine  of  Contributory  Negligence 193 


TABLE    OF    CONTENTS.  Xlll 


CHAPTER  X. 

OF  THE  RIGHT  OF  ACTION  IN   ADMIRALTY   FOR  INJURIES 
RESULTING  FATALLY. 


Section 


Page 


108.  Survival  of  Action  for  Injuries  Resulting  in  Death 

— The  General  Common-Law  Doctrine 194-199 

109.  The  Civil-Law  Doctrine 194-199 

110.  The  Continental  Doctrine 194-199 

111.  The  English  Doctrine  as  to  Survival  in  Admiralty        199 

112.  The  American  Doctrine  as  to  Survival  in  Admi- 

ralty—independent of   Statute _ 200-202 

113.  Under  State  Statutes ' 202-204 

114.  Under  Congressional  Statutes 204-207 

115.  The  Law  Governing 207-20S 

116.  Effect  of  Contributory  Negligence 208 

117.  Construction  of  Particular  Statutes 209-210 


CHAPTER  XI. 

OF  TORTS  TO  THE  PROPERTY,  AND  HEREIN  OF  COLLISION. 

118.  Rules  for  Preventing  Collisions,  the  Different  Sys- 

tems, and  the  Localities  Where  They  Apply 211-215 

119.  Preliminary   Definitions 215-216 

120.  Distinctive   Lights  Prescribed  for  Different  Ves- 

sels     216-222 

121.  Sound  Signals  in  Obscured  Weather 223-225 

122.  Speed  in  Obscured  Weather 226-228 

123.  Precautions  When  Approaching  Fog  Bank 228-229 

124.  Steering  and  Sailing  Rules  in  Fog 229-231 

CHAPTER  XII. 

THE  STEERING  AND  SAILING  RULES. 

125-127.     Origin,  Reasons  on  Which  Based,  and  General  Ap- 
plication     232-234 

128.  Sail    Vessels 234-237 

129.  Steamers — The  Port-Helm  Rule 237-240 

130.  The  Crossing  Rule 240-241 

131.  Steam   and  Sail 242  244 


XIV  TAliLE    OF    CONTENTS. 

Section  Page 

132.  Privileged   Vessels 245-246 

133.  Crossing  Ahead 246 

134.  The  Stop  and  Back  Rule 247-248 

135.  Overtaking   Vessels 24S-249 


CHAPTER  XIII. 
RULES  AS  TO  NARROW  CHANNELS,  SPECIAL  CIRCUMSTAN- 
CES, AND  GENERAL  PRECAUTIONS. 

136.  The  Narrow  Channel  Rule 250-253 

137.  The  General  Prudential  Rule,  or  Special  Circum- 

stance   Rule 253-257 

13S.     Sound  Signals 257 

139.  The  General  Precaution  Rule 257-258 

140.  Lookouts    258-260 

141.  Anchored   Vessels 261-265 

142.  Wrecks   265-266 

143.  The  Stand-By  Act 267-268 

CHAPTER  XIV. 

OP  DAMAGES  IN  COLLISION  CASES. 

144.  Recovery  Based  on  Negligence 269-270 

145.  Inevitable  Accident  or  Inscrutable  Fault 270-272 

146.  One  Solely  in  Fault 273 

147.  Both  in  Fault 273-277 

148.  Rights  of  Third  Party  Where  Both  in  Fault 278-279 

149.  Contribution  between  Colliding  Vessels — Enforce- 

ment in  Suit  against  Both 280 

150.  Enforcement  by  Bringing  in  Vessel  not  Party 

to    Suit 2S0-281 

151.  Enforcement  by  Independent  Suit 281-285 

152.  Measure  of  Damages 286 

153.  When  Loss  Total 286-287 

154.  When  Loss  Partial 287-289 

155.  Remoteness  of  Damages — Subsequent  Storm 290 

156.  Doctrine  of  Error  in  Extremis 291 


TABLE    OF    CONTENTS.  XV 


CHAPTER  XV. 

OF   VESSEL  OWNERSHIP  INDEPENDENT  OF   THE   LIMITED 
LIABILITY  ACT. 
Section  Page 
157.     Method  by  Which  Title  to   Vessels   may  be  Ac- 
quired or  Transferred 292-294 

15S.     Relation  of  Vessel  Owners  Inter  Sese 294-298 

159.     Relation  of  Vessel  Owners  as  Respects  Third  Par- 
ties     298-301 


CHAPTER  XVI. 

OF  THE  RIGHTS  AND   LIABILITIES  OF  OWNERS  AS 
AFFECTED  BY  THE  LIMITED  LIABILITY  ACT. 

160.  History  of  Limitation  of  Liability  in  General 302-303 

161.  History  and  Policy  of  Federal  Legislation 303-310 

162.  By     Whom     Limitation     of     Liability     may     be 

Claimed    310-311 

163.  Against    What     Liabilities     Limitation     may     be 

Claimed    311-313 

164.  Privity  or  Knowledge  of  Owner 313-319 

165.  The  Voyage  as  the  Unit 320 

166.  Extent  of  Liability  of  Part  Owners 321 

167.  Measure  of  Liability— Time  of  Estimating  Values..321-322 

168.  Prior  Liens 322-324 

169.  Damages  Recovered  from  Other  Vessel 324-326 

170.  Freight    326-327 

171.  Salvage  and  Insurance 327-32S 

172.  Procedure— Time  for  Taking  Advantage  of  Stat- 

ute     328-329 

173.  Defense  to  Suit  against  Owner,  or  Independent 

Proceeding    329-330 

174.  Method  of  Distribution 330 

CHAPTER  XVII. 

OF  THE  RELATIVE  PRIORITIES  OF  MARITIME  CLAIMS. 

175.  Relative  Rank  as  Affected  by  Nature  of  Claims. .  .331-332 
176-177.  Contract  Claims  in  General 332 


XVI  TABLE    OF    CONTENTS. 

Section  Page 

178.  Seamen's    Wages 333-335 

179.  Salvage    335-337 

180.  Materials,  Supplies,  Advances,  Towage,  Pilot- 

age, and  General  Average 337-339 

181.  Bottomry    339^341 

182.  Mortgages    341 

183.  Tort  Claims 341-345 

184.  Relative  Rank  as  Affected  by  Dates  of  Claims — 

Among  Claims  of  Same  Character 345-347 

185.  Among  Claims  of  Different  Character 347-348 

186.  Between  Contract  and  Tort  Claims 348 

187.  Between  Two  Tort  Claims 348-351 

188.  Relative  Rank  as  Affected  by  Suit  or  Decree 351-352 


CHAPTER  XVIII. 

A  SUMMARY   OF  PLEADING  AND   PRACTICE. 

189.  Simplicity  of  Admiralty  Procedure 353-354 

190.  Proceedings  in  Rem  and  in  Personam 354-355 

191.  The  Admiralty  Rules  of  Practice 356 

192.  The  Libel 356-357 

193.  Amendments    358 

194.  The    Process 359-360 

195.  Decrees  by  Default 360-361 

196.  The    Defense 361-362 

197.  The  Trial 362-363 

198.  Evidence   363 

199.  Attachments  in  Admiralty 364 

200.  Set-Off    364 

201.  Limitations    365 

202.  Tender    365 

203.  Costs    365-366 

204.  Enforcing  Decrees 366 

205.  The  Fifty-Ninth  Rule 366 

206.  The  Courts  Having  Admiralty  Jurisdiction 367-369 

207.  The  Process  of  Appeal 369-370 

208.  Questions  of  Fact  on  Appeal 370 

209.  New    Evidence 370-372 


TABLE    OF    CONTENTS.  XV11 


APPENDIX. 

Page 

1.  The  Mariner's  Compass 373 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules 374-390 

(2)  The   Rules   for   Coast  and   Connecting    Inland 

Waters 391-406 

(3)  The  Dividing  Lines  between  the  High  Seas  and 

Coast    Waters 407^410 

(4)  The  Lake  Rules 410-420 

(5)  The  Mississippi  Valley  Rules 420-426 

(6)  The  Act  of  March  3,    1899,   as  to  Obstructing 

Channels   426-430 

3.  The  Limited  Liability  Acts.  Including: 

(1)  The  Act  of  March  3.  1851,  as  Amended 431-433 

(2)  The  Act  of  June  26,  1884 433 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of 

Vessels    434-435 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts 435—441 

6.  Suits  in  Forma  Pauperis M1-A42 

7.  The  Admiralty  Rules  of  Practice 443-465 


TABLE  OF  LEADING  AND  ILLUSTRATIVE 
CASES. 


(Pages   467-474.) 


HUGHES.AD.— b 


HANDBOOK 


OF 


ADMIRALTY    LAW. 


CHAPTER  I. 

OF  THE  ORIGIN  AND   HISTORY   OF  THE  ADMIRALTY  AND 
ITS  EXTENT  IN  THE  UNITED  STATES. 

1.  Origin  and  History. 

2.  The  Admiralty  Classics. 

3.  The  Colonial  Admiralty  Jurisdiction,  and  Constitutional  Grant  of 

"Admiralty  and  Maritime  Jurisdiction." 

4.  The  Waters  Included. 

5.  The  Craft  Included. 


ORIGIN  AND  HISTORY. 

1.  The  admiralty  law  originated  in  the  needs  of 
commerce  and  the  custom  and  usage  of  mer- 
chants. 

In  the  dawn  of  recorded  story,  when  mythology  and  his- 
tory were  too  intermingled  to  separate  the  legendary  from 
the  authentic,  commerce  by  means  of  ships  was  drawing 
the  nations  together,  and  beginning  to  break  down  the 
barriers  of  prejudice  and  hostility  due  to  the  difficulty  and 
danger  of  land  communication.  The  voyage  of  the  Argo- 
nauts, the  Trojan  Expedition,  the  wanderings  of  Odysseus, 
though  military  in  the  songs  of  Homer,  were  probably  as 
much  for  exploration  as  for  conquest ;  as  merchants  and 
warriors  were  combined  in  one  person  of  necessity.     The 

KLGIiES.AD.— 1 


2  ORIGIN    AND    HISTORY    OF    THE    ADMIRALTY.  (Ch.    1 

enterprising  Rliodians  had  not  only  a  commerce,  but  a 
Code,  in  which  is  found  the  germ  of  the  law  of  general 
average.  The  shrewd  Phoenician  traders  were  carriers  for 
the  wise  Solomon,  and  planted  trading  colonies  through- 
out the  Mediterranean.  Their  Carthagenian  descendants 
were  their  worthy  successors.  Until  Rome  copied  their 
trireme,  her  domain  was  limited  to  Italy.  When  maritime 
skill  supplemented  military  prowess,  and  placed  at  her  com- 
mand new  and  easier  lines  of  advance,  she  overran  the 
world.  The  mart  soon  replaced  the  camp ;  for  it  is  a  teach- 
ing of  history  that  in  the  providence  of  God  the  havoc  of 
war  but  opens  new  avenues  for  the  arts  of  peace. 

In  the  Middle  Ages  the  hardy  Italian  republics  became 
the  carriers  of  the  world,  and  reached  a  high  plane  of  en- 
lightenment. The  Saracen  civilization  could  compare  favor- 
ably with  that  of  the  West ;  and  the  Italians,  in  their  con- 
stant warfare  against  Mohammedanism,  acquired  and  as- 
similated this  civilization,  and  spread  it  over  Europe.  Ven- 
ice, Florence,  Pisa,  and  Genoa  furnished  the  mariners  who 
scattered  the  gloom  of  the  dark  ages ;  who  civilized  the  old 
world,  and  discovered  the  new. 

The  Conflict  between  the  English  Common  Law  and  Ad- 
miralty Courts. 
The  modern  student  who  observes  the  present  colossal 
commerce  and  maritime  power  of  England  finds  it  hard  to 
realize  how  recent  is  its  development.  Yet  it  is  a  fact  that 
our  English  ancestors  were  not  by  nature  addicted  to  mari- 
time enterprise.  The  Anglo-Saxon  loved  the  quiet  recesses 
of  the  forest,  and  was  reluctant  to  venture  on  the  water. 
He  could  not  be  made  to  understand  that  his  only  security 
against  the  Danes,  who  harried  the  British  coast,  was  to 
meet  them  at  sea.  The  naval  victory  of  Alfred  was  sporadic, 
and  the  sea  power  of  the  Danes  soon  enabled  them  to  over- 
run and  conquer  England.  Even  the  Danish  conquest  did 
not  infuse  sufficient  maritime  blood  to  overcome  the  Saxon 


§    1)  ORIGIN    AND    HISTORY.  3 

propensity  to  remain  on  terra  firma.  During  many  months 
William  the  Conqueror  was  engaged  in  fitting  out  his  fleet 
and  .army  in  sight  of  their  coast,  yet  no  effort  was  made  to 
harass  him  on  the  voyage,  or  resist  his  landing.  It  is  diffi- 
cult to  understand  that  the  victims  of  Hastings  and  the 
victors  of  the  Hogue  were  of  the  same  nation. 

Prior  to  the  reign  of  Elizabeth,  many  continental  nations 
surpassed  England  in  maritime  enterprise.  Such  were  the 
Spaniards,  Portuguese,  Dutch,  and  even  the  French.  She 
it  was  who  first  grasped  England's  true  policy,  and  the  age 
of  Bacon  and  Shakespeare  in  letters  was  the  age  of  Drake 
and  Frobisher  and  Raleigh  in  navigation.  The  disgraceful 
reign  of  her  successor,  James  I.,  brought  about  a  partial 
reaction.  Lord  Coke,  the  great  apostle  of  the  common 
law,  was  the  leader  in  the  attack  on  the  admiralty,  issuing 
prohibitions  to  its  courts,  and  in  every  way  curtailing  its 
jurisdiction.  His  persecution  of  Raleigh,  the  great  nav- 
igator, was  but  the  personification  of  his  hatred  for  the  new 
order  of  things. 

In  consequence  of  this  common-law  hostility,  English 
commerce  was  long  retarded,  just  as  was  the  jurisdiction 
of  the  English  admiralty.  The  reigns  of  the  Stuarts  up  to 
the  English  commonwealth  were  noteworthy  for  a  tendency 
to  cultivate  friendly  relations  with  Spain,  thus  checking  the 
enterprise  of  the  great  sea  captains  who  had  long  made  re- 
lentless war  against  her.  Charles  II.  and  James  II.  were 
more  subservient  to  France  than  their  ancestors  had  been 
to  Spain,  so  that  the  steady  growth  of  English  commerce 
hardly  antedates  the  eighteenth  century. 

Meanwhile  the  common-law  judges  had  put  fetters  upon 
the  marine  law  of  England  which  could  not  be  so  easily 
cast  off.  Anything  continental  or  international  in  origin 
met  their  determined  resistance.  It  was  long  before  the 
English  courts  were  willing  even  to  admit  that  the  law  and 
custom  of  merchants,  to  which  England  owes  its  greatness 
of  to-day,  was  a  part  of  English  law ;    or  that  it  was  more 


4  ORIGIN    AND    HISTORY    OF    THE    ADMIRALTY.  (Ch.    1 

than  a  special  custom,  necessary  to  be  proved  in  each  case. 
In  consequence  of  this  sentiment,  the  English  admiralty 
jurisdiction  at  the  time  of  the  American  Revolution  was 
much  restricted,  being  narrower  than  the  continental  ad- 
miralty, and  far  narrower  than  the  present  jurisdiction  of 
the  American  and  English  admiralty  courts.  In  England 
an  act  of  parliament  was  necessary  to  enlarge  their  re- 
stricted jurisdiction  to  its  ancient  extent.1  In  the  United 
States  the  same  result  has  been  achieved,  so  far  as  neces- 
sary, by  much  judicial,  and  some  congressional,  legislation. 

THE  ADMIRALTY  CLASSICS. 

2.  The  sources  of  the  admiralty  law  lie  in  the  rea- 
son of  man  as  educated  by  international  trade 
relations,  and  are  evidenced  by  the  great  ad- 
miralty classics. 

The  law  of  the  sea  is  not  the  product  of  any  one  brain, 
or  any  one  age.  It  is  the  gradual  outgrowth  of  experience, 
expanding  with  the  expansion  of  commerce,  and  fitting  it- 
self to  commercial  necessities.  It  is  practically  a  branch  of 
the  law  merchant,  on  account  of  their  intimate  connection ; 
and  grew,  not  from  enactment,  but  from  custom ;  not  from 
the  edicts  of  kings,  but  from  the  progressive  needs  of  so- 
ciety. 

The  Ancient  Codes  and  Commentators. 

Yet  there  are  various  compilations  and  treatises  which 
evidence  the  maritime  law  of  their  respective  dates,  and  are 
valuable  for  reference,  because  they  did  not  originate  the 

§  1.  i  The  modern  English  admiralty  jurisdiction  is  regulated  by 
statute,  and  is  as  extensive  as  could  be  desired.  The  principal  stat- 
utes are:  3  &  4  Vict.  c.  65;  9  &  10  Vict.  c.  99;  17  &  18  Vict.  c.  104, 
§  476;  24  &  25  Vict.  c.  10;  31  &  32  Vict.  c.  71.  All  but  the  second 
of  these  will  be  found  in  the  appendix  to  Abbott's  Law  of  Merchant 
Ships  &  Seamen. 


§    2)  THE   ADMIRALTY    CLASSICS.  O 

provisions  on  the  subject,  but  merely  reduced  to  concrete 
form  the  customs  and  practices  which  had  grown  up  inde- 
pendent of  codes  and  commentators.  These  are  the  great 
classics  of  marine  law,  which  occupy  to  it  the  relation  that 
Bacon's  Abridgment  or  Coke's  and  Blackstone's  writings 
bear  to  the  common  law  of  England. 

The  Roman  Civil  Law  contains  many  provisions  regu- 
lating the  rights  and  responsibilities  of  ships. 

The  Digest  quotes  from  the  ancient  Rhodian  Code  its 
provision  as  to  contribution  of  interests  in  general  aver- 
age. It  contains  provisions  also  in  relation  to  the  liability 
of  vessels  for  injury  to  cargo,  for  punishment  of  thieves  and 
plunderers,  and  for  borrowing  on  bottomry  or  respon- 
dentia.1 

The  Consolato  del  Mare  is  a  collection  of  marine  laws 
antedating  the  fifteenth  century,  though  neither  its  author 
nor  its  date  is  known.  It  is  probably  a  compilation  of  the 
marine  customs  then  in  vogue  among  the  trading  nations 
of  Europe,  and  may  be  found  in  the  collection  of  maritime 
laws  made  by  Pardessus. 

The  Laws  of  Oleron  take  their  name  from  the  island  of 
Oleron  off  the  French  coast,  and  show  the  customs  then 
prevailing  in  respect  to  many  of  the  most  important  sub- 
jects relating  to  shipping.  They  are  supposed  to  have  been 
compiled  under  the  direction  of  Eleanor  of  Aquitaine,  who, 
as  queen,  first  of  France  and  then  of  England,  and  as  re- 
gent of  the  latter  during  the  absence  of  her  son  Richard 
Cceur  de  Lion  on  the  Crusades,  was  impressed  with  the 
importance  of  such  a  work. 

The  Laws  of  Wisbuy,  a  city  of  the  island  of  Gothland,  in 
the  Baltic,  are  very  similar  to  the  Laws  of  Oleron,  and  were 
probably  based  upon  them. 

The  Ordonnance  de  la  Marine  of  Louis  XIV.  is  the  best 
vindication  of  France  from  the  charge  that  her  people  are 

§  2.     i  Dig.  14,  2;   4,  9;    22,  2;    47,  5;    47,  (J. 


6  ORIGIN    AND    HISTORY    OF    THE    ADMIRALTY.  (Ch.    1 

not  fitted  for  maritime  enterprise.  It  was  published  in  1681, 
and  is  a  learned  and  accurate  digest  of  marine  law  and 
usages,  and  the  best  evidence  to  this  day  of  the  extent  and 
nature  of  the  admiralty  jurisdiction. 

The  Laws  of  Oleron,  the  Laws  of  Wisbuy,  and  the  Ordon- 
nance  were  printed  as  an  appendix  to  Peters'  Admiralty 
Decisions.  They  have  recently  been  reprinted,  along  with 
the  Laws  of  the  Hanse  Towns  and  other  interesting  matter 
of  the  same  sort,  as  an  appendix  to  volume  30  of  the  Fed- 
eral Cases,  thus  rendering  them  easily  accessible. 

In  1760,  Valin,  a  distinguished  advocate  of  Rochelle,  pub- 
lished a  commentary  on  the  Ordonnance,  in  two  quarto 
volumes,  which  ranks  in  authority  as  high  as  the  Ordon- 
nance itself. 

Cleirac,  another  French  writer,  published  at  Bordeaux, 
about  the  middle  of  the  seventeenth  century,  his  work  "Us 
et  Coustumes  de  la  Mer,"  which  contains  the  Laws  of 
Oleron,  of  Wisbuy,  of  the  Hanse  Towns,  and  many  other 
continental  provisions,  with  valuable  annotations  of  his  own. 

The  treatise  of  Roccus  "De  Navibus  et  Naulo,"  the  writ- 
ings of  Casaregis  on  mercantile  subjects,  and  those  of  Po- 
thier  in  the  same  field,  especially  that  on  maritime  hiring, 
are  equal  in  authority  to  any  of  those  previously  named. 

The  American  Authorities. 

In  the  United  States  the  marine  classics  are  mainly  de- 
cided cases.  The  only  treatise  covering  the  whole  field  is 
the  excellent  two-volume  work  of  Parsons  on  Shipping  and 
Admiralty,  which  cannot  be  commended  too  highly.  Its 
only  fault  is  that  it  was  published  thirty  years  ago.  There 
are  other  good  works  on  separate  departments  of  marine 
law ;  such  as  Marvin's  work  on  Salvage,  Dunlap's  Admi- 
ralty Practice,  Betts'  Admiralty  Practice,  Spencer's  work 
on  Collisions,  and  especially  Benedict's  treatise  on  Admi- 
ralty Practice,  which  is  indispensable  on  the  subject  of  which 
it  treats. 


§    3)  COLONIAL    ADMIRALTY   JURISDICTION.  / 

As  to  the  European  codes  and  works  above  named,  it 
must  be  borne  in  mind  that  they  are  only  persuasive  au- 
thority. They  are  evidence  of  the  general  maritime  lav:, 
and  not  necessarily  of  our  maritime  law,  except  in  so  far  as 
they  have  been  adopted  by  us.  As  was  well  said  by  Mr. 
Chief  Justice  Tilghman  in  an  early  Pennsylvania  case: 
"They  and  the  commentators  on  them  have  been  received 
with  great  respect  both  in  the  courts  of  England  and  the 
United  States,  not  as  conveying  any  authority  in  them- 
selves, but  as  evidence  of  the  general  marine  law.  When 
they  are  contradicted  by  judicial  decisions  in  our  own  coun- 
try, they  are  not  to  be  regarded,  but  on  points  which  have 
not  been  decided  they  are  worthy  of  great  consideration."  2 

THE  COLONIAL  ADMIRALTY  JURISDICTION,  AND 
CONSTITUTIONAL  GRANT  OF  "ADMIRALTY 
AND  MARITIME  JURISDICTION." 

3.  The  grant  of  "admiralty  and  maritime  juris- 
diction" to  the  federal  courts  in  the  constitu- 
tion means  the  jurisdiction  exercised  by  the 
colonial  and  state  admiralty  courts,  and  not 
the  narrower  jurisdiction  of  the  English 
courts. 

Prior  to  the  Revolution,  the  several  colonies  had  admi- 
ralty courts  by  virtue  of  commissions  from  the  crown. 
These  commissions  conferred  a  jurisdiction  much  wider 
than  that  of  the  same  courts  in  the  mother  country.1 

On  the  Declaration  of  Independence,  each  colony  became 
a  separate  nation,  and  organized  its  own  system  of  courts. 

2  30  Fed.  Cas.  1203.  See,  also,  THE  LOTTAWANNA,  21  Wall. 
558,  22  L.  Ed.  654. 

§  3.  i  An  idea  of  Its  extent  may  be  gathered  from  Lord  Com- 
bury's  vice  admiral's  commission,  set  out  in  extenso  in  section  124 
et     i   |  .  lien.  Adm. 


8  ORIGIN    AND    HISTORY   OF   THE    ADMIRALTY.  (Ch.  1 

Although  the  abuses  of  power  in  revenue  matters  had  been 
one  of  the  grievances  which  led  to  the  Revolution,  and  con- 
tributed an  indignant  sentence  to  the  Declaration  of  Inde- 
pendence, the  different  colonies  practically  adopted  the  ju- 
risdiction of  the  colonial  vice  admiralty  courts  for  their  own, 
impressed  by  its  advantages  to  their  nascent  shipping,  and 
they  disregarded  the  confined  limits  of  the  British  marine 
tribunals.  The  Virginia  statute  of  1779  is  a  good  illustra- 
tion : 

"Be  it  enacted  by  the  general  assembly,  that  the  court  of 
admiralty,  to  consist  of  three  judges,  any  two  of  whom  are 
declared  to  be  a  sufficient  number  to  constitute  a  court,  shall 
have  jurisdiction  in  all  maritime  causes,  except  those  where- 
in any  parties  may  be  accused  of  capital  offenses,  now  de- 
pending and  hereafter  to  be  brought  before  them,  shall  take 
precedence  in  court  according  to  the  order  in  time  of  their 
appointment,  and  shall  be  governed  in  their  proceedings 
and  decisions  by  the  regulations  of  the  congress  of  the 
United  States  of  America,  by  the  acts  of  the  general  as- 
sembly, by  the  Laws  of  Oleron  and  the  Rhodian  and  Im- 
perial Laws,  so  far  as  they  have  been  heretofore  observed 
in  the  English  courts  of  admiralty,  and  by  the  laws  of  nature 
and  of  nations."  a 

These  courts  were  in  active  operation  from  the  date  when 
the  colonies  declared  their  independence  in  1776  to  the 
adoption  of  the  constitution  in  1789. 

THE  WATERS  INCLUDED. 

4.  The  "waters  included  in  the  admiralty  jurisdic- 
tion are  all  waters,  -whether  tidal  or  not, 
navigable  for  commerce  of  a  substantial  char- 
acter. 

*  10  Hen.  St.  p.  98. 


§    4)  THE    WATERS    INCLUDED.  9 

Repudiation  of  Ancient  Tidal  Test  for  Test  of  Navigability. 
Article  3,  §  2,  of  this  instrument  extended  the  judicial 
power  of  the  United  States,  inter  alia,  "to  all  cases  of  admi- 
ralty and  maritime  jurisdiction."  It  was  long  assumed 
without  examination  that  the  measure  of  the  jurisdiction 
referred  to  in  this  clause  was  that  of  the  English  admiralty 
courts  at  the  time  of  the  Revolution.  Their  standard  was 
the  reach  of  the  tides.  In  the  contracted  islands  of  the 
mother  country  there  were  no  navigable  waters  that  were 
not  tidal.  And  so,  when  the  question  first  came  before  the 
supreme  court,  it  decided  that  the  domain  of  the  American 
admiralty  was  bounded  by  the  ebb  and  flow  of  the  tide.1 
But  this  rule  soon  became  embarrassing.  In  the  case  of 
Peyroux  v.  Howard  2  the  court  found  itself  gravely  discuss- 
ing whether  a  slight  swell  at  New  Orleans  could  properly 
be  called  a  tide.  Our  early  statesmen,  living  in  weak  com- 
munities strung  along  the  Atlantic  Coast,  did  not  realize  the 
possibilities  of  the  boundless  West,  inaccessible  from  its 
barrier  of  mountains  and  savages.  Jay,  our  first  chief  jus- 
tice, had  been  willing  to  barter  away  the  navigation  of  the 
Mississippi,  and  even  to  restrict  the  export  of  cotton,  which 
laid  the  foundation  of  our  national  wealth.  The  mighty 
rivers  and  their  tributaries  which  gave  access  to  a  conti- 
nent, the  great  lakes  of  our  northern  border,  which  had 
witnessed  some  of  our  most  notable  feats  of  arms,  were  by 
this  tidal  test  relegated  to  a  place  with  the  English  Cam 
and  Isis, — not  wide  enough  for  a  boat  race.  The  restriction 
could  not  be  endured,  and  so  the  court  gradually  broke 
away  from  English  traditions.  In  the  case  of  Waring  v. 
Clarke  8  it  decided  that  our  constitution  did  not  mean  to 
adopt  the  English  standard,  and  that  the  admiralty  could 
take  cognizance  of  controversies  maritime  in  their  nature, 
even  though  they  arose  in  the  body  of  a  county.    This  first 

{  4.     1  Tbe  Thomas  Jefferson,  10  Wheat.  428,  6  L.  Ed.  358. 
2  7  Tet.  342,  8  L.  Ed.  700. 
•  5  How.  441,  12  L.  Ed.  22G. 


10  ORIGIN    AND    HISTORY    OF    THE    ADMIRALTY.  (Ch.    1 

step  was  but  a  preliminary  to  entire  emancipation,  and  its 
corollary  was  THE  GENESEE  CHIEF,4  which  repudiated 
the  tidal  test  entirely,  and  held  that  the  true  criterion  of 
jurisdiction  was  whether  the  water  was  navigable. 

Since  then  the  court  has  frequently  said  that  the  grant  of 
jurisdiction  in  the  constitution  referred,  as  to  subject-mat- 
ter, not  to  the  curtailed  limits  of  the  English  admiralty,  but 
to  the  system  with  which  its  framers  were  familiar;  and 
this  was  the  colonial  and  state  admiralty,  which  was  prac- 
tically coincident  with  the  ancient  continental  admiralty.6 

What  are  Navigable  Waters. 

It  is  not  easy  to  say  as  matter  of  law  exactly  what  waters 
are  navigable  in  this  sense.  Care  must  be  taken  to  distin- 
guish between  the  clause  granting  the  admiralty  jurisdic- 
tion to  the  federal  courts  and  the  clause  granting  to  con- 
gress the  power  to  regulate  interstate  and  foreign  com- 
merce. The  supreme  court  has  frequently  said  that  they 
are  independent  of  each  other.  Yet  the  admiralty  jurisdic- 
tion is  at  least  as  extensive  as  the  commercial  clause.  It 
extends  to  waters  navigable  by  craft  of  sufficient  bulk  to  be 
engaged  in  interstate  commerce,  even  though  such  waters 
lie  entirely  within  the  limits  of  a  state  and  above  tide  water, 
and  even  though  the  voyage  be  between  ports  of  the  same 
state.6 

Under  the  commerce  clause  the  phrase  "navigable  wa- 
ters" has  been  often  considered.  The  case  of  THE  DAN- 
IEL BALL7  was  a  proceeding  against  a  steamer  for  violat- 
ing the  federal  license  laws.  She  navigated  entirely  within 
the  state  of  Michigan,  on  a  short  river,  and  drew  only  two 
feet  of  water.    The  river  emptied  into  Lake  Michigan.     In 

*  12  How.  463,  13  L.  Ed.  1058. 

»  THE  LOTTAWANNA,  21  Wall.  558,  22  L.  Ed.  654;  Ex  parte 
Easton,  95  U.  S.  68,  24  L.  Ed.  373. 

e  The  Magnolia,  20  How.  296,  15  L.  Ed.  909;  IN  RE  GARNETT, 
141  U.  S.  1,  11  Sup,  Gt.  840.  35  L.  Ed.  G31 

t  10  Wall.  557,  19  L.  Ed.  999. 


§    4)  THE    WATERS    INCLUDED. 


11 


the  course  of  the  opinion  the  court  said:  "Those  rivers 
must  be  regarded  as  public  navigable  rivers  in  law  which 
are  navigable  in  fact.  And  they  are  navigable  in  fact  when 
they  are  used,  in  their  ordinary  condition,  as  highways  for 
commerce  over  which  trade  and  travel  are  or  may  be  con- 
ducted in  the  customary  modes  of  trade  and  travel  on  wa- 
ter. And  they  constitute  navigable  waters  of  the  United 
States,  within  the  meaning  of  the  acts  of  congress,  in  con- 
tradistinction from  the  navigable  waters  of  the  states,  when 
they  form  in  their  ordinary  condition  by  themselves,  or  by 
uniting  with  other  waters,  a  continued  highway  over  which 
commerce  is  or  may  be  carried  on  with  other  states  or  for- 
eign countries  in  the  customary  modes  in  which  such  com- 
merce is  conducted  by  water." 

In  Leovy  v.  U.  S.8  the  court  upheld  an  act  of  the  Louis- 
iana legislature  authorizing  the  damming  of  a  small  bayou 
for  the  purpose  of  reclaiming  the  lands  bordering  thereon. 
It  was  shown  that  only  fishermen  and  oyster  boats  used  it. 
The  court  said  that,  in  order  to  be  public  navigable  waters, 
there  should  be  "commerce  of  a  substantial  and  permanent 
character  conducted  thereon." 

It  is  an  interesting  question  whether  the  admiralty  juris- 
diction extends  over  the  waters  of  a  lake  entirely  within 
the  borders  of  a  state,  and  without  any  navigable  outlet. 
In  the  case  of  United  States  v.  Burlington  &  Henderson 
County  Ferry  Co.9  Judge  Love  seems  to  think  that  such 
waters  are  without  the  admiralty  jurisdiction,  though  the 
point  was  not  directly  involved.  In  Stapp  v.  The  Clyde10 
the  question  was  necessarily  involved,  and  the  court  decided 
that  such  waters  were  not  of  admiralty  cognizance. 

Artificial  as  well  as  natural  water  ways  come  within  the 
jurisdiction  of  the  admiralty.     In  The  Oler  X1  this  was  decid- 

«  177  U.  S.  G21,  20  Sup.  Ot  797,  44  L.  Ed.  914. 

»  (D.  C.)  21  Fed.  331. 

io  43  Minn.  192,  45  N.  W.  430. 

"  2  Hughes,  12,  Fed.  Cas.  No.  10,485. 


12  ORIGIN    AND    HISTORY    OF    THE    ADMIRALTY.  (Ch.    1 

ed  as  to  the  Albemarle  and  Chesapeake  Canal.  Afterwards, 
in  Ex  parte  Boyer,12  the  supreme  court  upheld  the  juris- 
diction in  case  of  a  collision  between  two  canal  boats  on 
the  Illinois  and  Lake  Michigan  Canal,  an  artificial  canal 
entirely  within  the  limits  of  a  state,  but  forming  a  link  in 
interstate  Communication,  though  the  vessels  themselves 
were  on  voyages  beginning  and  ending  in  the  state. 

THE  CRAFT  INCLUDED. 

5.  The  character  of  craft  included  in  the  admiralty- 
jurisdiction  is  any  movable  floating  structure 
capable  of  navigation  and  designed  for  navi- 
gation. 

The  evolution  of  the  ship  from  the  dugout  or  bark  canoe 
to  the  galley  with  gradually  increasing  banks  of  oars,  then 
to  the  sail  vessel  with  masts  and  sails  constantly  growing 
and  replacing  the  human  biceps,  then  to  the  self-propelling 
steamers,  reckless  of  ocean  lanes  and  calm  belts,  is  one  of 
the  miracles  of  progress.  As  to  all  of  these  the  jurisdiction 
of  the  admiralty  is  clear.  But  hardly  less  important,  at 
least  in  local  commerce,  are  the  various  nondescripts  which 
dot  our  harbors,  like  lighters,  rafts,  car  floats,  floating  docks, 
dredges,  and  barges  with  no  motive  power  aboard. 

Here,  again,  it  must  be  remembered  that  the  admiralty 
clause  of  the  constitution,  and  not  the  commerce  clause, 
is  being  considered.  A  vessel  need  not  necessarily  be  en- 
gaged in  commerce  to  come  within  the  jurisdiction,  though, 
,if  it  was,  the  jurisdiction  would  be  clear.  The  true  test 
seems  to  be  capability  of  navigation  and  the  animus  navi- 
gandi.  The  very  same  structure,  when  permanently  at- 
tached to  the  shore,  and  thereby  becoming  a  practical  ex- 
tension of  the  shore,  without  any  intent  of  moving,  might 
be  out  of  the  jurisdiction ;   and  yet,  if  temporarily  attached, 

12  109  U.  S.  629,  3  Sup.  Ct.  434,  27  L.  Ed.  1056. 


§    5)  THE    CRAFT    IJ.XLUDED.  13 

and  designed  to  be  shifted  from  place  to  place  by  water, 
it  might  be  within  the  jurisdiction. 

The  leading  case  on  this  subject  is  COPE  v.  VAL- 
LETTE  DRY-DOCK  CO.1  There  the  court  held  that  the 
jurisdiction  did  not  include  a  floating  dry  dock  permanently 
attached  to  the  shore  at  New  Orleans,  and  not  intended  for 
navigation.  It  had  been  moored  to  the  same  place  for 
twenty  years.  Had  it  been  designed  to  be  towed  around  to 
different  places  in  the  harbor,  even  that  would  have  been 
navigation  sufficient,  and  in  such  case  the  court  would  prob- 
ably have  taken  jurisdiction.  It  is  difficult  to  reconcile  with 
this  the  case  of  Woodruff  v.  One  Covered  Scow,2  in  which 
Judge  Benedict  took  jurisdiction  of  a  floating  boathouse 
permanently  attached  to  a  wharf  to  afford  access  to  shore 
for  persons  from  small  boats.  As  the  Vallette  Dry-Dock 
Case  was  only  decided  on  January  10,  1887,  and  this  case 
on  February  18,  1887,  it  is  likely  that  the  former  was  not 
known  to  Judge  Benedict. 

Under  the  jurisdiction  are  included  lighters  of  the  sim- 
plest kind,  for  even  they  are  considered  to  "appertain  to 
travel  or  trade  or  commerce."  8 

A  floating  elevator,  used  for  the  storage  of  grain,  but 
designed  to  be  moved  from  place  to  place  in  a  harbor,  is 
included.4 

There  are  many  cases  extending  the  jurisdiction  over 
dredges,  both  those  which  lift  the  mud  by  dippers,  and 
deposit  it  in  scows  to  be  towed  away,  and  those  which 
work  on  a  sucking  principle,  drawing  the  mud  from  the 
bottom,  and  delivering  it  on  shore  by  long  lines  of  pipe.6 

§  5.     1  119  U.  S.  625,  7  Sup.  Ct.  330,  30  L.  Ed.  501. 

2  (D.  C.)  30  Fed.  2G9. 

3  The  General  Cass,  1  Brown,  Adm.  334,  Fed.  Cas.  No.  5,307;  The 
Wilmington  (D.  C.)  4.8  Fed.  566. 

*  The  Hezekiah  Baldwin,  8  Ben.  55G,  Fed.  Cas.  No.  6,44!J. 
b  Baylor  v.  Taylor,  23  C.  C.  A.  343,  77  Fed.  47G;  McRae  v.  Dredging 
Co.  (C.  C.)  86  Fed.  344;   The  -Mac,  7  Prob.  Div.  126. 


14  ORIGIN    AND    HISTORY    OF   THE    ADMIRALTY.  (Ch.    1 

The  same  is  true  of  floating  movable  derricks,  and  pile 
drivers.6 

On  the  other  hand,  a  marine  pump  dredge,  capable  of 
being  moved  from  place  to  place,  but  resting  on  piles,  and 
not  floating,  has  been  very  properly  held  to  be  excluded 
from  admiralty  cognizance.7 

In  The  Public  Bath  No.  13  8  Judge  Brown  held  that  a 
bath  house  built  on  boats,  and  made  to  shift  from  place  to 
place,  is  within  the  jurisdiction.  This,  and  the  case  of  U. 
S.  v.  Burlington  &  Henderson  County  Ferry  Co.,9  are  good 
illustrations  of  cases  where  the  courts  treat  navigability  ir- 
respective of  trade  or  commerce  as  the  proper  test  of  the 
admiralty  jurisdiction  in  contradistinction  to  the  powers  of 
congress  under  the  commerce  clause  of  the  constitution. 

In  construing  the  meaning  of  the  word  "ship"  under  the 
English  statutes  conferring  jurisdiction  on  the  admiralty 
courts,  the  house  of  lords  has  held  that  a  floating  gas  buoy, 
which  had  been  broken  loose,  and  had  been  saved,  could 
not  be  libeled  for  salvage,  as  it  was  not  designed  either  for 
navigation  or  for  use  in  commerce.10 

The  Hendrick  Hudson  lx  was  a  dismantled  steamer,  which 
was  being  used  as  a  hotel.  While  being  towed  to  another 
place,  it  was  in  peril,  and  salvage  services  were  rendered  to 
it.    The  court  held  that  it  was  not  within  the  cognizance  of 

the  admiralty. 

This  decision  would  seem  to  be  out  of  line  with  the  more 

«  Maltby  v.  A  Steam  Derrick,  3  Hughes,  477,  Fed.  Cas.  No.  9,000; 
Lawrence  v.  Flatboat  (D.  C.)  84  Fed.  200;  Southern  Log  Cart.  &  Sup- 
ply Co.  v.  Lawreuce,  30  C.  C.  A.  480,  86  Fed.  907.  Judge  Swan  has 
held  otherwise.     Pile  Driver  E.  O.  A.  (D.  C.)  69  Fed.  1005. 

I  The  Big  Jim  (D.  C.)  61  Fed.  503. 
s  (D.  C.)  61  Fed.  092. 

9  (D.  C.)  21  Fed.  331. 

10  The  Gas  Float  Whitton  No.  2  [1S97]  App.  Cas.  337. 

II  3  Ben.  419,  Fed.  Cas.  No.  6,355. 


§    o)  THE    CRAFT    INCLUDED.  15 

recent  authorities.    Whether  the  structure  was  a  hotel  or  a 
steamboat,  it  was  engaged  in  actual  navigation.     Had  the 
Vallette   Dry  Dock  been  so   engaged,  the  supreme  court 
would  probably  have  sustained  the  jurisdiction. 
Bafts. 

Whether  a  raft  is  such  a  structure  as  to  come  under  the 
jurisdiction  cannot  be  considered  as  settled.  The  Vallette 
Dry-Dock  Case  seems,  in  its  reasoning,  to  assume  that 
ships  and  cargoes  of  ships  alone  come  under  the  jurisdic- 
tion, and  that  floating  merchandise,  never  in  any  way  con- 
nected with  a  ship,  is  not  included.  Yet  in  its  concluding 
paragraph  it  mentions  the  case  of  rafts,  and  cites  several 
well-considered  decisions  sustaining  the  jurisdiction,  but 
without  expressing  either  approval  or  disapproval. 

In  Seabrook  v.  Raft  of  Railroad  Cross-Ties,12  Judge 
Simonton,  in  sustaining  jurisdiction,  well  says  that  rafts 
were  the  original  methods  of  water  locomotion.  As  they 
are  navigated,  and  designed  to  be  navigated,  and  not  tied 
permanently  to  one  place,  like  a  dry  dock,  it  would  seem 
that  the  weight  of  reasoning  is  in  favor  of  the  jurisdiction 
in  such  case. 

12  (D.  C.)  40  Fed.  596. 


16  ADMIRALTY    JURISDICTION.  (Ch.    2 


CHAPTER  II. 

OF  THE  ADMIRALTY  JURISDICTION  AS  GOVERNED  BY  THE 
SUBJECT-MATTER. 

6.  Cases  in  Contract  and  Cases  in  Tort. 

7.  Tests  of  Jurisdiction. 
8-10.     Contracts  of  Seamen. 

11.     Master's  Right  to  Proceed  in  Rem  for  His  Wages. 
12-19.     Pilotage. 


CASES  IN  CONTRACT  AND  CASES  IN  TORT. 

6.  The    sources    of    admiralty    jurisdiction,    as    in 

other  branches  of  substantive  law,  naturally 
subdivide  into  rights  arising  out  of  contract 
and  rights  arising  out  of  tort. 

(a)  Rights  arising  out   of  contract  are  maritime 

■when  they  relate  to  a  ship  as  an  instru- 
ment of  commerce  or  navigation,  intended 
to  be  used  as  such  or  to  facilitate  its  use  as 
such. 

(b)  Rights  arising  out  of  tort  are  maritime  "when 

they  arise  on  public  navigable  waters. 

7.  TESTS   OF  JURISDICTION— The  test  of  juris- 

diction is  different  in  each  of  these  classes  of 
cases. 

(a)  The   test  in   contract   cases  is   the   nature   of 

the  transaction. 

(b)  The  test  in  tort  cases  is  the  locality. 

In  the  warfare  made  by  the  common  law  upon  the  admi- 
ralty courts,  one  line  of  common-law  attack  was  the  con- 
tention that  only  contracts  were  maritime  which  were  made 
upon  the  sea,  and  to  be  performed  upon  the  sea ;    thus  at- 


§§    6-7)         CASES    IN    CONTRACT    AND    CASES    IN    TORT.  17 

tempting  to  apply  to  contractual  rights,  as  well  as  torts,  the 
test  of  locality.  Under  the  English  decisions  this  distinc- 
tion excluded  many  subjects  of  marine  cognizance  which 
the  Continental  admiralty  undoubtedly  covered.  In  some  of 
the  earlier  decisions  of  this  country  traces  of  this  distinc- 
tion may  also  be  found.  But  it  is  now  well  settled  that  the 
test  in  matters  of  contract  is  irrespective  of  locality,  and 
depends  entirely  upon  the  nature  of  the  transaction.  In 
England  itself  the  restriction  became  so  intolerable  that  an 
act  of  parliament  was  necessary,  and  accordingly  the  act 
defining  the  jurisdiction  of  the  admiralty  courts  restored  the 
ancient  admiralty  jurisdiction  to  such  an  extent  that  the 
modern  English  courts  have  a  jurisdiction  as  wide  as  the 
Continental  or  American  courts. 

What  Contracts  Are  Maritime  by  Nature. 

It  is  difficult  to  lay  down  any  definition  which  is  beyond 
criticism.  The  courts  have  in  many  instances  said  whether 
certain  particular  controversies  were  maritime  or  not,  but 
no  satisfactory  definition  has  yet  been  enunciated  which  will 
enable  the  student  to  say  in  advance  whether  a  given  case 
is  marine  or  not.  In  DE  LOVIO  v.  BOIT,1  Mr.  Justice 
Story,  in  holding  that  contracts  of  marine  insurance  are 
within  the  admiralty  jurisdiction,  discusses  with  great  learn- 
ing the  ancient  extent  of  that  jurisdiction,  naming  in  more 
than  one  connection  the  general  subjects  which  writers 
and  codifiers  had  enumerated,  and  says  that  it  includes  "all 
transactions  and  proceedings  relative  to  commerce  and 
navigation";  also  "all  contracts  which  relate  to  the  navi- 
gation, business,  or  commerce  of  the  sea." 

In  the  case  of  New  England  Mut.  Marine  Ins.  Co.  v. 
Dunham  2  the  court  says :  "The  true  criterion  is  the  nature 
and  subject-matter  of  the  contract  as  to  whether  it  was  a 

§§  6-7.     i  2  Gall.  398,  Fed.  Cas.  No.  3.776. 
2  11  Wall.  1,  20  L.  Ed.  90. 

HUGIIES.AD.— 2 


18  ADMIRALTY    JURISDICTION.  (Ch.    2 

maritime  contract,  having  reference  to  maritime  services  or 
maritime  transactions." 

In  the  case  of  Zane  v.  The  President,3  Mr.  Justice  Wash- 
ington says :  "If  the  subject-matter  of  a  contract  concerned 
the  navigation  of  the  sea,  it  is  a  case  of  admiralty  and  mari- 
time jurisdiction,  although  the  contract  be  made  on  land." 
The  case  was  a  proceeding  by  a  material  man. 

The  case  of  Wortman  v.  Griffith  4  was  a  suit  by  the  owner 
of  a  shipyard  for  the  use  of  his  marine  ways  by  the  vessel. 
Mr.  Justice  Nelson  decided  that  the  admiralty  had  jurisdic- 
tion, saying:  "The  nature  of  the  contract  or  service,  and 
not  the  question  whether  the  contract  is  made  or  the  serv- 
ice is  rendered  on  the  land  or  on  the  water,  is  the  proper 
test  in  determining  whether  the  admiralty  has  or  has  not 
jurisdiction." 

Under  the  test  as  laid  down,  the  mere  fact  that  a  ship 
may  be  incidentally  connected  with  the  transaction  does  not 
make  the  matter  maritime.  One  or  two  illustrations  will 
show  the  distinction. 

In  the  case  of  Ward  v.  Thompson  5  there  was  an  agree- 
ment between  certain  parties  to  carry  on  a  trade  venture, 
one  contributing  a  vessel  and  the  other  his  skill  and  labor, 
on  the  basis  of  a  division  of  profits  on  a  fixed  ratio.  The 
court  held  that  this  was  nothing  but  an  ordinary  common- 
law  agreement  of  partnership,  and  was  not  made  maritime 
by  the  mere  fact  that  a  ship  was  part  of  the  partnership 
property. 

The  case  of  Bogart  v.  The  John  Jay e  was  a  proceed- 
ing in  admiralty  to  foreclose  a  mortgage  on  a  vessel. 
There  was  nothing  to  show  that  the  money  had  been  bor- 
rowed for  any  purpose  connected  with  the  use  of  the  ves- 
sel, and  the  only  connection  the  vessel  had  with  it  was  the 

»  4  Wash.  C.  C.  453,  Fed.  Cas.  No.  18,201. 
«3  Blatchf.  528,  Fed.  Cas.  No.  18,057. 
e  22  How.  330,  16  L.  Ed.  249. 
«  17  How.  399.  15  L.  Ed.  95. 


ss 


6-7)        CASES    IN    CONTRACT    AND    CASES    IN    TORT.  19 


mere  fact  that  it  was  his  security  for  the  debt,  just  as  a 
horse  or  any  other  piece  of  personal  property  might  have 
been.     It  was  held  that  admiralty  had  no  jurisdiction. 

In  the  case  of  Minturn  v.  Maynard  7  the  supreme  court 
decided  that  an  admiralty  court  had  no  jurisdiction  of  mere 
matters  of  account,  even  though  they  were  accounts  relat- 
ing to  a  ship. 

In  the  case  of  The  Illinois  8  a  party  had  leased  the  privi- 
lege of  running  a  bar  on  a  passenger  steamer  plying  be- 
tween Memphis  and  Vicksburg.  When  the  vessel  fell  into 
trouble,  and  was  libeled  by  some  other  creditor,  he,  too, 
came  into  the  admiralty  court,  and  claimed  that  this  was, 
in  effect,  a  charter  of  part  of  the  vessel,  and  that  he  had  a 
remedy  in  admiralty.  The  court,  however,  could  not  see 
that  a  transaction  of  this  sort  had  any  maritime  character- 
istics, and  decided  that  there  was  no  jurisdiction. 

In  the  case  of  Doolittle  v.  Knobeloch  9  the  owner  of  a 
vessel  had  employed  the  libellant  to  purchase  a  steamer 
for  him,  and  to  look  generally  after  his  interests  in  bringing 
the  steamer  from  New  York  to  Charleston,  though  not  in 
connection  with  any  navigation  of  the  vessel.  He  attempted 
to  collect  his  money  by  a  proceeding  in  rem  against  the 
vessel  and  in  personam  against  the  owner.  The  court  de- 
cided that  it  was  not  an  admiralty  contract. 

If  the  principal  contract  is  maritime,  the  jurisdiction  of 
the  court  is  not  ousted  by  the  fact  that  some  incidental 
question  growing  out  of  it  would  not  be  maritime  in  case  it 
stood  alone.10 

On  the  other  hand,  mere  preliminary  contracts  looking 
to  a  formal  contract  are  not  maritime,  even  though  the 
contract  itself,  when  executed,  may  be  so.     For  instance,  a 

t  17  How.  4.77.  15  L.  Ed.  235. 
s  2  Flip.  383,  Fed.  Cas.  No.  7,005. 
s  (D.  C.)  39  Fed.  40. 

io  The  Charles  F.  Perry,  1  Low.  475,  Fed.  Cas.  No.  2,616;  The 
Louisiana  (C.  C.)  37  Fed.  261. 


20  ADMIRALTY    JURISDICTION.  (Ch.   2 

contract  of  charter  party  partly  performed  is  clearly  mari- 
time, but  a  preliminary  agreement  to  make  a  contract  of 
charter  party  is  not  maritime.11 

The  same  general  transaction  may  be  maritime  in  one 
case  and  not  maritime  in  another.  As  emphasizing  this 
distinction,  there  is  the  maxim  that  "a  ship  is  made  to 
plough  the  seas,  and  not  to  lie  at  the  walls."  Hence,  wharf- 
age rendered  to  a  ship  while  loading  or  unloading,  or  in  her 
regular  use  as  a  freight-earning  enterprise,  is  a  maritime 
contract.12 

On  the  other  hand,  wharfage  to  a  ship  laid  up  for  the 
winter  while  waiting  for  the  season  to  open  is  not  mari- 
time.13 

This  same  distinction  is  further  illustrated  by  the  deci- 
sions in  relation  to  watchmen  on  vessels.  Those  who  are 
watchmen  while  vessels  are  in  port  during  voyages  are  con- 
sidered as  having  made  a  maritime  contract,  but  those  who 
have  charge  of  her  while  laid  up  have  no  such  contract.1* 

CONTRACTS  OF  SEAMEN. 

8.  Every  person  who  shall   be   employed  or  en- 

gaged to  serve  in  any  capacity  on  board  a 
vessel  shall  be  deemed  and  taken  to  be  a  sea- 
man. 

9.  Seamen   are   the  wards  of  the   admiralty,   and 

have  a  prior  claim  for  their  -wages. 

10.  Their  contracts  are  governed  by  the  ordinary 
/•ule?  of  contract    except  as  modified  by  stat- 

n  Andrews  v.  Insurance  Co.,  3  Mason,  6,  Fed.  Cas.  No.  374;  The 
Tribune,  3  Sumn.  144,  Fed.  Cas.  No.  14,171;  Oakes  v.  Richardson,  2 
Low.  173,  Fed.  Cas.  No.  10,390;  The  Eugene,  31  C.  C.  A.  345,  87  Fed. 
1001. 

12  Ex  parte  Easton,  95  U.  S.  68,  24  L.  Ed.  373. 

is  The  0.  Vanderbilt  (D.  C.)  86  Fed.  785. 

i*  The  Erinagh  (D.  C.)  7  Fed.  231. 


§§    8-10)  CONTRACTS    OF   SEAMEN.  21 

ute,  and.  by  the  disposition  of  the  courts  to 
guard  them  against  imposition,  and  except 
that  force  may  be  used,  to  compel  obedience 
to  lawful  orders,  on  account  of  the  peculiar 
nature  of  the  service. 

The  contracts  of  seamen  have  always  been  considered 
among  the  most  important  in  the  admiralty,  as  a  good  crew 
is  the  most  important  outfit  that  a  ship  can  have.  Her 
construction  may  be  the  best  that  modern  ingenuity  may 
produce.  Every  device  of  recent  invention  may  be  lavished 
upon  her.  Yet,  unless  she  has  a  brain  to  direct  her  course, 
and  skillful  hands  to  regulate  the  pulsations  of  her  engines 
and  manage  her  numerous  complicated  machinery,  her  pro- 
peller is  paralyzed,  her  siren  is  dumb.  She  is  like  the  human 
body  when  the  soul  has  departed.  Mere  machinery  is  of 
but  little  service  unless  intelligently  handled.  It  is  not  the 
gun,  but  the  man  behind  it,  that  is  formidable ;  and  in  mod- 
ern as  in  ancient  times  the  personal  equation  is  still  con- 
trolling. On  this  account  the  utmost  encouragement  and 
the  fullest  protection  to  seamen  are  the  established  policy 
of  the  admiralty  law. 

Who  Are  Seamen. 

As  the  courts  have  been  liberal  in  their  construction  of 
the  word  "ship,"  they  have  been  equally  so  in  deciding  what 
constitutes  a  "seaman,"  in  the  modern  sense.  The  term  is 
not  limited  to  those  who  actually  take  part  in  the  navigation 
of  the  ship.  Every  one  who  is  regularly  attached  to  the  ship, 
and  contributes  to  her  successful  handling,  is  a  seaman, 
though  he  may  not  know  one  rope  from  another. 

The  definition  above  given  is  the  exact  language  of  sec- 
tion 4612  of  the  Revised  Statutes.  For  instance,  as  a  dredge 
has  been  considered  a  ship,  so  the  men  who  operate  it  are 
held  to  be  seamen.1 

5§  8-10.     1  Saylor  v.  Taylor,  'J3  C.  C.  A.  343.  77  Fed.  470. 


22  ADMIRALTY    JURISDICTION.  (Oh.    2 

Fishermen  and  sealers,  who  go  for  that  sole  purpose,  are 
held  to  be  seamen.2 

The  wife  of  the  cook,  engaged  by  the  master  as  second 
cook,  is  a  mariner  in  this  sense.8 

So,  too,  the  clerk  of  a  steamboat.* 

On  account  of  the  peculiar  character  of  seamen,  the  courts 
scrutinize  closely  their  contracts,  in  order  to  protect  them 
from  imposition.  They  are  improvident  and  wild,  easily  im- 
posed upon,  and  the  constant  prey  of  designing  men.  Their 
rights,  in  modern  times,  are  largely  governed  by  statute. 
In  the  United  States  the  statutory  provisions  regulating 
them  are  contained  in  sections  4501-4612  of  the  Revised 
Statutes.  This  codification  of  the  law  in  relation  to  them, 
however,  has  been  much  amended  and  modified  by  subse- 
quent legislation,  though  its  general  policy  has  been  but 
little  changed.  The  subsequent  acts  modifying  them  will 
be  found  in  the  notes.6  A  detailed  discussion  of  the  par- 
ticular effect  of  those  amendments  is  impracticable  for  want 
of  space. 

Statutory  Provisions. 

The  first  provisions  relate  largely  to  the  method  of  their 
engagement,  requiring  shipping  articles  carefully  prepared 
and  publicly  executed,  and  providing  penalties  for  the  viola- 
tion of  such  articles.  In  cases  of  ambiguity  in  construing 
these  articles,  the  courts  lean  in  favor  of  the  seamen.8 

The  next  class  of  provisions  relates  to  seamen's  wages 
and  effects.    It  was  an  old  maxim  of  the  English  admiralty 

2  The  Minna  (D.  C.)  11  Fed.  759;  The  Ocean  Spray,  4  Sawy.  105, 
Fed.  Cas.  10,412. 

a  The  James  H.  Shrigley  (D.  C.)  50  Fed.  287. 

*  The  Sultana.  1  Brown,  Adm.  13,  Fed.  Cas.  No.  13,602. 

b  Act  June  9,  1874  (18  Stat.  64);  Act  June  26,  1884  (23  Stat.  53);  Act 
June  19,  1SS6  (24  Stat.  79);  Act  Aug.  19,  1890  (26  Stat.  320);  Act  Feb. 
18,  1895  (28  Stat.  667);  Act  March  3,  1897  (29  Stat.  687);  Act  De- 
cember 21,  1898  (30  Stat.  755). 

e  Wope  v.  Hemenway,  1  Spr.  300,  Fed.  Cas.  No.  18,042. 


§§    8-10)  CONTRACTS    OF   SEAMEN.  23 

law  that  "freight  is  the  mother  of  wages,"  though  there  were 
many  exceptions  to  it,  and  its  true  limits  have  not  been 
always  understood.  This  rule  no  longer  prevails  in  the 
United  States  under  the  statutory  provisions  referred  to. 
The  ancient  rule  and  its  limitations  may  be  seen  from  the 
opinion  of  Mr.  Justice  Woodbury  in  the  case  of  The 
Niphon.7 

In  order  to  protect  a  seaman  from  imposition,  the  stat- 
utes render  void  any  agreement  by  him  waiving  any  reme- 
dies for  his  wages,  and  forbid  any  assignment  or  attach- 
ment of  them. 

Under  the  practice  of  the  admiralty  courts,  a  seaman  is 
not  required  to  give  the  usual  stipulation  for  costs  when  he 
libels  a  vessel.  But,  in  order  to  protect  the  vessel  from  be- 
ing arrested  on  frivolous  charges,  the  law  requires  that,  be- 
fore issuing  any  libel,  he  must  cite  the  master  to  appear  be- 
fore a  commissioner  to  show  cause  why  process  should  not 
issue.  The  commissioner  thereupon  holds  a  sort  of  pre- 
liminary examination,  and  issues  process  if  he  thinks  there 
is  sufficient  justification  for  it. 

The  statutes  also  contain  elaborate  provisions  for  the 
seaman's  discharge,  and  for  his  protection  in  relation  to  the 
character  of  the  vessel,  the  character  of  the  food  and  medi- 
cine furnished,  his  clothing,  etc.,  for  which  reference  must 
be  made  to  the  statutes. 

Priority  of  Lien. 

Under  the  same  policy,  the  admiralty  courts  have  always 
held  that,  as  a  general  rule,  the  wages  of  seamen  constitute 
among  contract  claims  the  first  lien  upon  the  ship,  and 
adhere  to  it  as  long  as  a  plank  is  left  afloat.8 

There  may  be  circumstances  in  which  other  liens  would 
be  preferred  to  seamen's  wages,  as  where  salvors  bring  a 
ship  in,  and  thereby  save  the  ship  for  the  seamen  as  well  as 

i  Brunner,  Col.  Cas.  577,  Fed.  Cas.  No.  10.277. 

«  Set.-,  also,  The  Ocean  Spray,  4  Sawy.  105,  Fed.  Cns.  No.  10.412. 


24  ADMIRALTY    JURISDICTION.  (Ch.    2 

others;    but   these   cases   are   exceptional,   and   cannot  be 
discussed,  at  least  in  this  connection,  in  detail.9 

Enforcing  Obedience. 

In  one  respect  the  contracts  of  seamen  vary  materially 
from  ordinary  contracts.  The  general  rule  in  the  usual 
contracts  of  hiring  is  that  suit  or  discharge  is  the  only  rem- 
edy for  its  violation.  On  the  other  hand,  the  importance  of 
preserving  discipline  upon  a  vessel,  and  of  performing  the 
services  necessary  for  her  protection,  and  for  the  protection 
even  of  life,  justifies  the  master  in  using  physical  force  to  a 
reasonable  extent  in  order  to  enforce  obedience.  It  is  hard 
to  draw  the  exact  limits,  but  it  may  be  said  in  general  that  a 
master  may  inflict  blows  for  the  purpose  of  compelling 
obedience  to  an  order,  or  may  put  mutinous  seamen  in  irons 
or  in  confinement  as  a  punishment,  or  may  forfeit  their 
wages  for  misconduct.  In  fact,  under  exceptional  circum- 
stances of  aggravation,  the  master  may  even  take  life.  But 
the  other  officers  of  the  ship  cannot  punish  for  past  of- 
fenses. They  can  only  use  a  reasonable  amount  of  force  to 
compel  obedience.10 

Seamen  of  Foreign  Vessels. 

As  a  rule,  the  court  will  not  take  jurisdiction  in  contro- 
versies between  the  seamen  of  a  foreign  ship  and  her  master 
or  the  ship.  Many  of  the  countries  have  express  treaty 
stipulations  giving  sole  cognizance  of  these  disputes  to  their 
consuls.  In  cases  where  sucn  a  treaty  exists,  the  court 
will  not  interfere  at  all.11 

In  cases  where  there  is  no  treaty  expressly  forbidding 

o  Relf  v.  The  Maria,  1  Pet  Adm.  186,  Fed.  Cas.  No.  11,692.  See 
post,  pp.  333,  343. 

io  u.  S.  v.  Alden,  1  Spr.  95,  Fed.  Cas.  No.  14,427;  Relf  v.  The 
Maria,  1  Pet  Adm.  186,  Fed.  Cas.  No.  11,692;  Turner's  Case,  1 
Ware,  77,  Fed.  Cas.  No.  14,248;  Macomber  v.  Thompson,  1  Sumn. 
384,  Fed.  Cas.  No.  8.919;  ROBERTSON  v.  BALDWIN,  165  U.  S.  275, 
17  Sup.  Ct.  326,  41  L.  Ed.  715;    Stout  v.  Weedin  (D.  C.)  9-j  Fed.  1001. 

ii  The  Montapedia  (D.  C.)  14  Fed.  427. 


§  11)     master's  right  to  proceed  in  rem  for  wages.     25 

it,  the  courts  have  discretion  whether  to  take  jurisdiction 
or  not,  but  they  will  not  take  jurisdiction  unless  under  ex- 
treme circumstances  of  cruelty  or  hardship.12 

In  considering  this  question,  the  nationality  of  the  ship 
governs,  and  the  sailors  are  all  presumed  to  be  of  the  same 
nationality  as  the  ship,  no  matter  what  may  be  their  actual 
nationality.13 

When  the  court  takes  jurisdiction  under  such  circum- 
stances, it  applies  by  comity  the  law  of  the  vessel's  flag.14 

MASTER'S  RIGHT  TO  PROCEED  IN  REM  FOR  HIS 
WAGES. 

11.  Under  the  general  admiralty  law,  the  master 
has  no  right  to  proceed  in  rem  for  wages. 
Whether  he  has  when  a  state  statute  pur- 
ports to  give  it  is  unsettled. 

The  master  is  not  allowed,  under  the  general  admiralty 
law,  to  proceed  against  the  vessel  either  for  his  wages  or 
any  disbursements  that  he  may  make  on  her  behalf. 

One  reason  assigned  for  this  exception  is  that  the  master 
does  not  need  such  a  remedy,  as  he  may  pay  himself  out 
of  the  freight  money.  But  the  difficulty  about  this  is  that 
he  does  not  always  have  the  right  to  collect  it,  and,  in  fact, 
under  modern  conditions,  very  rarely  has  that  right. 

A  better  reason  is  his  relation  to  the  ship.  He  is  the  trustee 
or  representative  of  the  owners  in  distant  ports.  The  law 
looks  to  him  to  protect  their  interests,  and  they  have  the 
right  to  assume  that  he  will  protect  their  interests.  When 
a  ship  herself  is  sued,  process  is  served  upon  her  alone,  or 

12  THE  BELGENLAND,  114  U.  S.  355,  5  Sup.  Ct.  800,  29  L.  Ed. 
15-J;   The  Topsy  (D.  C.)  44  Fed.  035. 

is  The  Heathcraig  (D.  C.)  L08  Fed.  419;  In  re  Ross,  140  U.  S.  454, 
11  Snp.  Ct.  SOT.  35  L.  Ed.  581. 

i«  The  Belvidere  (D.  C.)  90  Fed.  100. 


26  ADMIRALTY    JURISDICTION.  (fill.    2 

her  master,  and  not  upon  her  owners.  In  such  case  the 
master  is  their  representative  for  the  very  purpose  of  pro- 
tecting the  ship  and  safeguarding  their  interests.  Hence, 
if  he  were  allowed  to  sue  his  own  vessel,  he  might  con- 
fiscate her  at  the  very  time  when  they  think  he  is  protecting 
her,  and  so  he  has  no  right  to  proceed  against  the  ship 
which  is  intrusted  to  him  to  protect.1 

It  is  a  more  difficult  question  whether  a  state  statute  can 
give  a  master  a  right  of  action  against  the  ship.  In  the 
Raleigh  Case,  just  cited,  Judge  Hughes  held  that  it  could 
not.  The  general  principle  as  to  the  effect  of  state  stat- 
utes is  that,  if  a  contract  is  maritime  in  its  nature,  a  state 
statute  can  add  to  it  the  additional  remedy  of  a  lien,  and 
the  federal  courts  will  enforce  it.  Hence,  if  the  claim  of 
the  master  is  maritime  under  the  principles  of  general  ad- 
miralty law,  it  would  seem  that  a  state  statute  could  add  to 
the  right  which  he  would  then  have  to  sue  in  personam 
the  additional  right  of  proceeding  against  the  vessel  in  rem. 
There  is  some  wavering  on  the  question  whether  he  can 
proceed  even  in  personam.2  But  the  trend  of  modern  au- 
thority is  in  favor  of  holding,  at  least,  that  the  contract  is 
maritime,  which  would  give  him  the  right  to  proceed  in 
personam. 

In  the  case  of  The  Mary  Gratwick,3  where  a  statute  of 
California  purported  to  give  the  master  a  lien,  Judge  Hoff- 
man held  that  his  contract  was  maritime,  and  that,  there- 
fore, the  statute  could  give  the  right  of  procedure  in  rem. 

The  fact  that  the  contract  is  maritime  would  seem  to  be 
settled  by  the  case  of  The  William  M.  Hoag.4  There  a 
master  had  proceeded  against  a  vessel  under  a  statute  of 

§  11.  i  The  Raleigh,  2  Hughes,  44,  Fed.  Cas.  No.  11,539;  The 
Grand  Turk,  1  Paine,  73,  Fed.  Cas.  No.  5,683. 

2  The  Grand  Turk,  1  Paine,  73.  Fed.  Cas.  No.  5.GS3;  Hammond  v. 
Insurance  Co.,  4  Mason,  196,  Fed.  Cas.  No.  6,001. 

8  Fed.  Cas.  No.  17.591. 

*  168  U.  S.  443,  18  Sup.  Ct.  114,  42  L.  Ed.  537. 


§11)       MASTER'S    RIGHT    TO    PROCEED    IN    REM    FOR    WAGES.       27 

Oregon  purporting  to  give  him  the  lien.  District  Judge 
Bellinger  had  held  that  he  was  entitled  to  hold  the  vessel.6 
Thereupon  an  appeal  was  taken  direct  to  the  supreme  court 
under  the  clause  of  the  appellate  court  act  giving  such  ap- 
peal on  questions  of  jurisdiction.  It  was  contended  that 
whether  the  master  had  a  lien  for  his  wages  was  a  question 
of  jurisdiction.  The  case  was  heard  along  with  that  of  The 
Resolute.8  Mr.  Justice  Brown  therefore  found  it  neces- 
sary to  discuss  exactly  what  constitutes  jurisdiction.  He 
held  that :  "Jurisdiction  is  the  power  to  adjudicate  a  cause 
upon  the  merits,  and  dispose  of  it  as  justice  may  require. 
As  applied  to  a  suit  in  rem  for  a  breach  of  a  maritime  con- 
tract, it  presupposes — First,  that  the  contract  sued  upon  is 
a  maritime  contract;  and,  second,  that  the  property  pro- 
ceeded against  is  within  the  lawful  custody  of  the  court. 
These  are  the  only  requirements  to  give  jurisdiction. 
Proper  cognizance  of  the  parties  and  subject-matter  being 
conceded,  all  other  matters  belong  to  the  merits."  The 
opinion  of  the  supreme  court,  therefore,  settles  that  the 
contract  is  maritime,  which  required  an  affirmance  of  the 
decree  of  the  district  court  without  passing  upon  the  ques- 
tion whether  the  state  statute  could  create  the  additional 
lien. 

Under  the  principles  laid  down  in  THE  J.  E.  RUM- 
BELL,7  it  seems  that  state  statutes  could  have  this  effect, 
though  in  that  case  the  question  whether  it  could  have  such 
an  effect  as  to  a  claim  of  the  master  for  wages  was  ex- 
pressly reserved.  In  fact,  these  two  cases  show  that  the 
supreme  court  is  evidently  reluctant  to  sustain  such  a  lien, 
on  account  of  the  inconvenience  and  abuses  to  which  it  may 
give  rise. 

e  (D.  C.)  69  Fed.  742. 

e  168  U.  S.  437,  18  Sup.  Ot.  112.  42  L.  Ed.  533. 

t  US  U.  S.  1,  13  Sup.  Ct.  4.98,  37  L.  Ed.  345. 


28  ADMIRALTY    JURISDICTION.  (Ch.    2 

PILOTAGE. 

12.  A  pilot  is  a  person  who,  in  consequence  of  his 

special  knowledge  of  the  waters,  has  charge 
of  the  steering  of  a  vessel. 

13.  State  pilot  laws  are  constitutional. 

14.  The  skill  required  of  a  pilot  is  the   ordinary 

care  of  an  expert  in  his  profession. 

15.  When  in  charge  of  navigation,  he   supersedes 

the  master. 

16.  Under    the  American    decisions    the    vessel    is 

liable  for  his  negligence,  even  though  he  is  a 
compulsory  pilot. 

17.  He  is  liable  for  negligence. 

18.  Whether  the  pilot  associations  are  liable  for  the 

acts  of  a  pilot  is  unsettled. 

19.  In  America  admiralty  courts  have  jurisdiction 

over  suits  against  pilots. 

The  word  "pilot"  is  used  in  admiralty  in  reference  to  two 
classes.  A  pilot  may  be  a  regular  member  of  the  crew,  or 
he  may  be  taken  aboard  simply  to  conduct  a  vessel  in  or  out 
of  port.  The  nature  of  his  duties  is  in  each  case  about  the 
same.  He  is  supposed  to  know  specially  the  waters  through 
which  the  vessel  navigates,  and  to  conduct  her  safely  through 
them.  The  importance  of  his  duties,  therefore,  is  only  sec- 
ond to  that  of  the  master.  In  fact,  the  courts  have  frequent- 
ly looked  upon  him  as  practically  charged  with  the  same  re- 
sponsibility as  the  master. 

Validity  of  State  Pilot  Laws. 

Most  of  the  states  bordering  on  navigable  waters  have 
passed  laws  regulating  the  business  of  pilotage,  and  render- 
ing it  obligatory  upon  a  vessel  to  take  a  pilot,  or  pay  the 


§§    12-19)  PILOTAGE.  29 

pilotage  fees,  even  though  the  master  of  the  vessel  may  him- 
self be  familiar  with  the  waters,  and  not  need  assistance  in 
taking  his  ship  to  port.  The  compulsory  nature  of  these 
laws  has  been  often  criticized,  though  they  would  seem  to  be 
based  upon  reasons  of  sound  public  policy.  Unless  pilotage 
is  compulsory,  the  occupation  would  not  be  sufficiently  re- 
munerative to  induce  men  of  skill  and  character  to  engage  in 
it.  It  is  like  those  other  numerous  kinds  of  expenses  in 
modern  business  where  people  must  pay  even  when  no  direct 
service  is  rendered,  in  order  to  support  a  class  of  men  who 
can  render  that  service  best.  It  is  similar  to  the  payment 
of  taxes  in  order  to  support  police  and  fire  departments  even 
though  the  individuals  who  pay  them  may  never  be  robbed 
or  have  their  houses  burned ;  for  a  moment  may  come  when 
any  one  of  them  may  need  such  protection. 

In  the  case  of  COOLEY  v.  BOARD  OF  WARDENS 
OF  PORT  OF  PHILADELPHIA  1  the  court  says :  "Like 
other  laws,  they  are  framed  to  meet  the  most  usual  cases, — 
quae  frequentius  accidunt.  They  rest  upon  the  propriety 
of  securing  lives  and  property  exposed  to  the  perils  of  a 
dangerous  navigation  by  taking  on  board  a  person  pecu- 
liarly skilled  to  encounter  or  avoid  them ;  upon  the  policy 
of  discouraging  the  commanders  of  vessels  from  refusing  to 
receive  such  persons  on  board  at  the  proper  times  and 
places ;  and  upon  the  expediency,  and  even  intrinsic  justice, 
of  not  suffering  those  who  have  incurred  labor,  and  expense, 
and  danger  to  place  themselves  in  a  position  to  render  im- 
portant service  generally  necessary,  to  go  unrewarded,  be- 
cause the  master  of  a  particular  vessel  either  rashly  refuses 
their  proffered  assistance,  or,  contrary  to  the  general  ex- 
perience, does  not  need  it.  There  are  many  cases  in  which 
an  offer  to  perform,  accompanied  by  present  ability  to  per- 
form, is  deemed  by  law  equivalent  to  performance.  The 
laws  of  commercial  states  and  countries  have  made  an  offer 

§§  12-10.     i  12  How.  -2'J'J,  13  L.  Ed.  996. 


30  ADMIRALTY    JURISDICTION.  (Ch.   2 

of  pilotage  service  one  of  those  cases ;  and  we  cannot  pro- 
nounce a  law  which  does  this  to  be  so  far  removed  from  the 
usual  and  fit  scope  of  laws  for  the  regulation  of  pilots  and 
pilotage  as  to  be  deemed  for  this  cause  a  covert  attempt  to 
legislate  upon  another  subject  under  the  appearance  of  leg- 
islating on  this  one." 

In  the  case  of  The  China  2  the  court  said :  "It  is  nec- 
essary that  both  outward  and  inward  bound  vessels  of  the 
classes  designated  in  the  statute  should  have  pilots  possess- 
ing full  knowledge  of  the  pilot  grounds  over  which  they  are 
to  be  conducted.  The  statute  seeks  to  supply  this  want,  and 
to  prevent,  as  far  as  possible,  the  evils  likely  to  follow  from 
ignorance  or  mistake  as  to  the  qualifications  of  those  to  be 
employed,  by  providing  a  body  of  trained  and  skillful  sea- 
men, at  all  times  ready  for  the  service,  holding  out  to  them 
sufficient  inducements  to  prepare  themselves  for  the  dis- 
charge of  their  duties,  and  to  pursue  a  business  attended 
with  so  much  of  peril  and  hardship." 

These  pilotage  laws  are  among  the  state  statutes  relating 
to  vessels  which  have  been  upheld  as  not  in  conflict  with  the 
clause  of  the  federal  constitution  conferring  on  congress 
the  exclusive  right  to  regulate  interstate  and  foreign  com- 
merce.3 The  theory  of  these  decisions  is  that  such  laws  af- 
fect commerce  incidentally,  and  are  valid  until  congress  leg- 
islates on  the  subject.  As  soon  as  congress  does  legislate, 
all  state  provisions  in  conflict  with  such  legislation  are  su- 
perseded. 

The  leading  case  on  the  subject  is  COOLEY  v.  BOARD 
OF  WARDENS  OF  PORT  OF  PHILADELPHIA.' 

2  7  Wall.  53,  19  L.  Ed.  67. 

s  Article  1,  §  8,  cl.  3. 

<  12  How.  299,  13  L.  Ed.  996.  See,  also,  Ex  parte  McNiel,  13  Wall. 
236,  20  L.  Ed.  624;  Wilson  v.  McNamee,  102  U.  S.  572,  26  L.  Ed. 
234;  Sprague  v.  Thompson,  IIS  U.  S.  90,  6  Sup.  Ct.  988,  30  L.  Ed. 
115. 


§§    12-19)  PILOTAGE.  31 

Skill  Required  of  Pilot. 

Since  a  pilot  hires  himself  out  as  an  expert,  and  is  em- 
ployed because  he  is  an  expert,  the  measure  of  care  required 
of  him  is  a  high  one.  Some  of  the  cases  go  so  far  as  to  say 
that  his  liability  is  as  great  as  that  of  a  common  carrier,  but 
the  contract  of  pilotage  is,  after  all,  one  of  mere  hiring,  and 
it  would  seem  that  the  duty  required  of  him  is  simply  the 
ordinary  care  required  of  any  servant.  This  ordinary  care, 
however,  as  is  well  known,  varies  with  the  character  of  the 
employment,  so  that  the  ordinary  care  required  of  an  expert 
is  much  higher  than  the  ordinary  care  required  of  a  simple 
driver  of  a  land  vehicle.  The  pilot's  liability  is  for  ordinary 
care,  but  that  means  the  ordinary  care  of  an  expert  in  his 
profession.  While  a  pilot  is  not  liable  for  mere  errors  of 
judgment,  he  is  liable  for  any  accident  that  care  and  atten- 
tion and  an  intelligent  knowledge  of  the  locality  with  which 
he  professes  familiarity  might  prevent.  He  is  supposed  to 
know  the  currents,  the  channel,  and  all  special  difficulties  con- 
nected therewith,  except  unknown  and  sudden  obstructions 
which  he  could  not  find  out  by  intelligent  attention.  He  is 
supposed  to  know  how  to  cross  the  bar,  and  when  it  is  the 
proper  time  to  cross  it. 

In  the  case  of  ATLEE  v.  UNION  PACKET  CO.5  the 
court  lays  down  the  following  as  the  knowledge  required  of 
a  river  pilot : 

"The  character  of  the  skill  and  knowledge  required  of  a 
pilot  in  charge  of  a  vessel  on  the  rivers  of  the  country  is  very 
different  from  that  which  enables  a  navigator  to  carry  his 
vessel  safely  on  the  ocean.  In  this  latter  case  a  knowledge 
of  the  rules  of  navigation,  with  charts  which  disclose  the 
places  of  hidden  rocks,  dangerous  shores,  or  other  dangers 
of  the  way,  are  the  main  elements  of  his  knowledge  and  skill, 
guided  as  he  is  in  his  course  by  the  compass,  by  the  reckon- 
ing and  the  observations  of  the  heavenly  bodies,  obtained  by 

«21  Wall.  389,  22  L.  Ed.  619. 


32  ADMIRALTY    JURISDICTION.  (Ch.   2 

the  use  of  proper  instruments.  It  is  by  these  he  deter- 
mines his  locality,  and  is  made  aware  of  the  dangers  of  such 
locality,  if  any  exist.  But  the  pilot  of  a  river  steamer,  like 
the  harbor  pilot,  is  selected  for  his  personal  knowledge  of 
the  topography  through  which  he  steers  his  vessel.  In  the 
long  course  of  a  thousand  miles  in  one  of  these  rivers  he 
must  be  familiar  with  the  appearance  of  the  shore  on  each 
side  of  the  river  as  he  goes  along.  Its  banks,  towns,  its 
landings,  its  houses  and  trees,  and  its  openings  between 
trees,  are  all  landmarks  by  which  he  steers  his  vessel.  The 
compass  is  of  little  use  to  him.  He  must  know  where  the 
navigable  channel  is  in  its  relation  to  all  these  external  ob- 
jects, especially  in  the  night.  He  must  also  be  familiar  with 
all  dangers  that  are  permanently  located  in  the  course  of  the 
river,  as  sand  bars,  snags,  sunken  rocks  or  trees,  or  aban- 
doned vessels  or  barges.  All  this  he  must  know  and  remem- 
ber and  avoid.  To  do  this  he  must  be  constantly  informed 
of  changes  in  the  current  of  the  river,  of  sand  bars  newly 
made,  of  logs,  or  snags,  or  other  objects  newly  presented, 
against  which  his  vessel  might  be  injured.  In  the  active  life 
and  changes  made  by  the  hand  of  man  or  the  action  of  the 
elements  in  the  path  of  his  vessel,  a  year's  absence  from  the 
scene  impairs  his  capacity — his  skilled  knowledge — very  se- 
riously in  the  course  of  a  long  voyage.  He  should  make  a 
few  of  the  first  'trips,'  as  they  are  called,  after  his  return,  in 
company  with  other  pilots  more  recently  familiar  with  the 
river. 

"It  may  be  said  that  this  is  exacting  a  very  high  order  of 
ability  in  a  pilot.  But  when  we  consider  the  value  of  the 
lives  and  property  committed  to  their  control, — for  in  this 
they  are  absolute  masters, — the  high  compensation  they  re- 
ceive, and  the  care  which  congress  has  taken  to  secure  by 
rigid  and  frequent  examinations  and  renewal  licenses  this 
very  class  of  skill,  we  do  not  think  we  fix  the  standard  very 
high." 


§§    12-19)  PILOTAGE.  33 

In  the  case  of  The  Oceanic e  the  court  says :  "A  li- 
censed pilot,  who  undertakes  to  take  a  ship,  with  sails  up, 
through  a  channel  such  as  that  leading  over  the  bar  of  the 
St.  Johns  river,  Fla.,  should  know  the  channel,  its  depths, 
shoals,  and  the  changes  thereof,  and  should  be  charged  with 
negligence  if  he  fails  to  skillfully  direct  the  course  of  the 
ship,  and  give  proper  supervision  and  direction  to  the  nav- 
igation of  the  tug  which  is  towing  her." 

Relative  Duties  of  Pilot  and  Master. 

When  a  pilot  comes  aboard  a  vessel,  it  is  often  a  difficult 
question  to  say  what  are  his  duties  and  those  of  the  master 
in  connection  with  the  navigation.  No  ship  is  large  enough 
for  two  captains.  It  may  be  said,  in  general,  that  the  pilot 
has  charge  of  the  navigation,  including  the  course  to  steer, 
the  time,  place,  and  method  of  anchorage,  and,  in  general, 
the  handling  of  the  ship.  The  master  must  not  interfere 
unless  the  pilot  is  plainly  reckless  or  incompetent.  Then 
he  must  take  charge  himself.  In  fact,  in  many  cases  the 
pilot  is  spoken  of  as  the  temporary  master.  On  their  rela- 
tive duties  the  supreme  court  says :  7  "Now,  a  pilot,  so  far 
as  respects  the  navigation  of  the  vessel  in  that  part  of  the 
voyage  which  is  his  pilotage  ground,  is  the  temporary  mas- 
ter, charged  with  the  safety  of  the  vessel  and  cargo,  and  of 
the  lives  of  those  on  board,  and  intrusted  with  the  command 
of  the  crew.  He  is  not  only  one  of  the  persons  engaged  in 
navigation,  but  he  occupies  a  most  important  and  responsi- 
ble place  among  those  thus  engaged."  8 

«  20  G.  C.  A.  574,  74  Fed.  642.  See,  also,  The  Saluda,  Fed.  Cas. 
No.  17,232;  SIDERACUDI  v.  MAPES  (D.  C.)  3  Fed.  873;  The  Tom 
Lysle  (D.  C.)  48  Fed.  GOO;  WILSON  v.  ASSOCIATION  (D.  O.)  55  Fed. 
1000,    Id.,  57  Fed.  229. 

"  COOLEY  v.  BOARD,  12  How.,  at  page  31G,  and  13  L.  Ed.,  at 
page  1003. 

s  See,  also,  The  Oregon,  158  U.  S.  194,  195,  15  Sup.  Ct.  804,  39  L 
Ed.  943;  THE  MARCELLTJS,  1  Cliff.  481,  Fed.  Cas.  No.  2,347;  The 
Shubert  (D.  C.)  45  Fed,  503. 

HUQHES.AD.— 3 


34  ADMIRALTY    JURISDICTION.  (Ch.   2 

Liability  of  Vessel  for  Acts  of  Pilot. 

In  one  respect  the  decisions  in  relation  to  pilots  seem  to 
run  counter  to  all  common-law  ideas  on  the  subject  of  agen- 
cy. It  is  a  principle  of  the  law  of  agency  that  the  founda- 
tion of  the  principal's  responsibility  for  the  acts  of  his  agent 
is  the  right  of  selection  and  control.  Yet  the  American 
courts  hold  that  a  vessel  is  responsible  to  third  parties  for 
injuries  arising  from  the  negligence  of  the  pilot,  even  though 
he  came  on  board  against  the  will  of  the  master,  under  a 
state  statute  of  compulsory  pilotage.0 

In  this  respect  the  English  law  is  different.  By  express 
statute  there  a  vessel  is  not  liable  for  the  acts  or  defaults  of 
a  compulsory  pilot. 

The  reason  why  the  vessel  is  held  liable  is  that  admiralty 
looks  on  the  vessel  itself  as  a  responsible  thing,  and  that 
under  the  ancient  laws  relating  to  pilots  the  responsibility 
was  one  which  attached  to  the  vessel  itself,  irrespective  of 
ownership,  it  being  thought  unjust  to  require  injured  third 
parties  to  look  beyond  the  offending  thing  to  questions  of 
ownership  or  control. 

A  pilot  is  liable  to  the  vessel  for  any  damage  caused  by 
carelessness  or  negligence.10 

Liability  of  Association  for  Acts  of  Individual  Pilot. 

Where  state  pilot  laws  prevail,  it  is  usual  for  the  pilots  to 
organize  into  associations,  frequently  unincorporated.  The 
question  whether  the  association  would  be  liable  for  the  neg- 
ligence of  one  of  its  members  is  a  nice  one,  and  cannot  be 
said  to  be  finally  settled.  It  would  depend  to  some  extent 
upon  the  character  of  the  association  itself.  Some  of  them 
own  no  common  property,  keep  no  common  fund,  and  the 
pilots  take  vessels  in  rotation,  and  each  pilot  takes  the  fee 
which  he  makes.  Other  associations  own  pilot  boats  in 
common,  rent  offices,  own  other  property,  keep  a  common 

»  The  China,  7  Wall.  53,  19  L.  Ed.  67. 

io  SIDERACUDI  v.  MAPES  (D.  C.)  3  Fed.  873. 


§§    12-19)  PILOTAGE.  35 

fund,  pay  all  expenses,  pay  all  the  separate  fees  collected 
from  vessels  into  the  common  fund,  and  divide  the  balance 
remaining  among  the  individual  members.  On  principle  it 
would  seem  that  this  ought  to  constitute  a  joint  liability,  and 
that  the  different  members  of  such  an  association  ought  to 
be  responsible  for  the  acts  of  an  individual  pilot.  It  would 
seem  that  all  the  requisites  that  concur  to  make  a  joint  lia- 
bility would  be  present  in  such  a  case.  In  fact,  it  would 
hardly  be  putting  the  case  too  strongly  to  call  it  a  partner- 
ship. 

In  Ward  v.  Thompson,11  which  was  a  question  as  to  what 
constituted  a  partnership,  the  court  held  that  community  of 
trade  for  mutual  profit,  one  of  the  partners  contributing  a 
vessel  and  the  other  his  skill  and  experience,  and  commu- 
nity of  profits  on  a  fixed  ratio,  constituted  a  partnership. 

In  the  case  of  Berthold  v.  Goldsmith  12  the  question  as  to 
what  constitutes  a  partnership  was  discussed  at  some  length, 
and  there,  too,  it  was  held  substantially  as  laid  down  in  the 
previous  case. 

In  the  case  of  Strang  v.  Bradner,18  one  of  the  members  of 
a  partnership  had  made  a  fraudulent  representation  amount- 
ing to  a  deceit  without  the  knowledge  of  his  partners,  and 
the  proceeds  of  the  notes  so  obtained  had  been  paid  into  the 
partnership  accounts,  and  used  in  the  business.  The  court 
held  that  all  the  members  were  responsible  for  this  act  of 
one. 

In  Meehan  v.  Valentine,14  the  court  held  that  lending 
money  to  a  partnership  under  an  agreement  that  interest, 
and  also  a  part  of  the  profits,  should  be  paid,  did  not  consti- 
tute the  lender  a  partner;    but  in  discussing  it  the  court 

11  22  How.  330,  16  L.  Ed.  249. 

12  24  How.  536,  16  L.  Ed.  762. 

is  114.  U.  S.  555,  5  Sup.  Ct.  103S,  29  L.  Ed.  243. 
i*  145  U.  S.  611,  12  Sup.  Ct.  972,  36  L.  Ed.  835.     See,  also,  Sun  Ins. 
Co.  v.  Kountz  Line,  122  U.  S.  5S3,  7  Sup.  Ct.  1278,  30  L.  Ed.  1137. 


36  ADMIRALTY    JURISDICTION.  (Ch.   2 

said  1B  that  "those  persons  are  partners  who  contribute  ei- 
ther property  or  money  to  carry  on  a  joint  business  for  their 
common  benefit,  and  who  own  and  share  the  profits  thereof 
in  certain  proportions." 

In  Moreton  v.  Hardern,18  one  of  three  proprietors  of  a 
stagecoach  injured  a  person  by  negligent  driving.  The 
court  held  that  all  three  were  responsible  in  damages. 

In  the  case  of  Sagers  v.  Nuckolls,17  the  court  held  that  all 
the  members  of  a  partnership  were  responsible  for  the  death 
of  a  person  caused  by  the  negligence  of  one. 

Under  the  general  principles  relating  to  joint  liability  it 
would  seem,  therefore,  that  an  association  of  the  character 
above  described  ought  to  be  liable  for  the  acts  of  its  indi- 
vidual members.  The  case,  however,  has  not  been  definitely 
adjudicated. 

In  Mason  v.  Ervine,18  Judge  Pardee,  as  circuit  judge,  held 
that  the  Louisiana  Pilots  Association  was  not  liable  for  the 
act  of  one  of  its  members.  This  case  would  seem  rather 
to  have  turned  upon  the  special  language  of  the  Louisiana 
Code  than  upon  the  general  principle,  for  the  report  itself 
does  not  show  the  provisions  or  character  of  their  associa- 
tion. In  any  event,  the  question  was  not  necessary  for  the 
decision  of  the  case,  as  he  held  that  the  pilot  himself  was 
not  guilty  of  any  negligence,  which  of  itself  was  sufficient  to 
dispose  of  the  case. 

In  The  City  of  Reading,19  District  Judge  McPherson  held 
that  the  Delaware  River  Pilots  Association  was  not  respon- 
sible for  the  negligence  of  one  of  its  members.     The  report 

«  Page  623,  145  TJ.  S.,  page  975,  12  Sup.  Ct,  and  page  841,  36  L. 
Ed. 

ie  4  Barn.  &  C.  (10  E.  C.  L.  553)  223. 

it  3  Colo.  App.  95,  32  Pac.  187. 

iMC.  C.)  27  Fed.  459. 

i»  (D.  C.)  103  Fed.  696,  affirmed,  The  City  of  Dundee  (0.  C.  A.) 
108  Fed.  679,  as  to  nonliability  of  association,  reserving  question  as 
to  liability  of  ship  for  act  of  pilot. 


§§    12-19)  PILOTAGE.  37 

does  not  fully  show  the  character  of  that  association,  but 
it  would  seem  to  be  a  mere  association  for  benevolent  pur- 
poses, and  that  even  the  pilot  fees  were  not  paid  into  a 
common  treasury.  He  held  in  the  same  case  that  a  steam- 
ship was  not  liable  for  the  act  of  a  pilot  in  anchoring  her  at 
an  improper  place,  and  not  anchoring  her  in  the  regular  an- 
chorage grounds  designated  by  the  port  wardens.  In  this 
respect,  at  least,  the  case  would  seem  to  be  in  conflict  with 
The  China  decision,  above  referred  to.  It  would  seem, 
therefore,  that  these  two  decisions  do  not  change  the  gen- 
eral rule  of  liability,  and  that  under  that  rule  an  association 
of  pilots  who  hold  property  in  common,  used  in  a  common 
business,  and  have  a  common  treasury,  would  be  responsible 
for  the  acts  of  its  different  members. 

Remedies  far  Pilotage. 

A  pilot  may  proceed  in  rem  against  the  vessel  for  his  fees, 
even  though  they  are  merely  for  a  tender  of  service  which 
the  vessel  refuses  to  accept.20 

It  would  seem  clear  on  principle  that  admiralty  has  juris- 
diction of  suits  against  pilots  for  negligence.  The  English 
decisions,  however,  are  against  it.21  But  their  decisions 
turn  upon  their  special  statutes,  and  upon  doctrines  not 
adopted  by  our  courts.  There  are  many  such  cases  in  our 
reports,  though  the  question  of  jurisdiction  does  not  seem  to 
have  been  raised  in  them.82 

On  principle  it  is  difficult  to  say  how  the  jurisdiction  can 
be  denied.  It  would  be  difficult  to  find  a  transaction  more 
maritime  in  character  than  the  duties  of  a  pilot.  His  right 
to  proceed  in  rem  is  thoroughly  settled,  and  the  right  to  pro- 

*o  The  Alzena  (D.  C.)  14  Fed.  174. 

**  The  Alexandria,  L.  R.  3  Adm.  &  Ecc.  574;  Flower  v.  Bradley,  44 
Law  J.  Exch.  1. 

22  The  Urania,  10  Wkly.  Rep.  97.  See,  as  Illustrations,  SIDERA- 
CUDI  v.  MAPES  (D.  C.)  3  Fed.  873;  WILSON  v.  ASSOCIATION  (D. 
C.)  55  Fed.  1000;    Id.,  57  Fed.  227. 


38  ADMIRALTY    JURISDICTION.  (Ch.   2 

ceed  against  him  ought  certainly  to  be  as  maritime  as  his 
right  to  seize  the  vessel. 

As  will  be  seen  in  a  future  connection,  the  test  of  a  mar- 
itime tort  is  simply  that  it  is  a  tort  occurring  on  maritime 
waters.  The  act  of  a  pilot  in  injuring  a  vessel  by  his  neg- 
ligence certainly  measures  up  to  this  test.  Therefore  there 
ought  to  be  no  question  of  the  right  to  proceed  against  him 
in  the  admiralty. 


§    20)         GENERAL   AVERAGE    AND    MARINE   INSURANCE.  39 

CHAPTER  m. 

OF  GENERAL  AVERAGE  AND  MARINE  INSURANCE. 

20.  "General  Average"  Defined. 

21.  Requisites  of  General  Average. 

22.  "Marine  Insurance"  Defined. 

23.  Maritime  Character  of  Contracts. 

24.  Insurable  Interest. 

25.  Conditions  in  Contracts  of  Insurance. 

26.  Misrepresentation  and  Concealment. 

27.  Seaworthiness. 

28.  Deviation. 

29.  Illegal  Traffic. 

30.  The  Policy  and  its  Provisions  as  to  Risk  and  Perils  Insured 

Against. 

31.  Perils  of  the  Seas. 

32.  Barratry. 

33.  Thefts, 

34.  All  Other  Perils. 

35.  Proximate  Cause  of  Loss. 
30.  The  Loss— Total  or  Partial. 
37.  Actual  or  Constructive. 
3S.  Abandonment 

39.  Agreed  Valuation. 

40.  Subrogation  of  Insurer. 

41.  Suing  and  Laboring  Clause. 

"GENERAL  AVERAGE"  DEFINED. 

20.  General  average  is  the  principle  of  law  which 
requires  that  the  parties  interested  in  a 
marine  venture  shall  contribute  to  make  up 
the  loss  of  the  sufferer  when  there  is  a  vol- 
untary sacrifice  of  part  of  the  venture  made 
by  the  master,  as  representative  of  all  con- 
cerned, for  the  benefit  of  all. 


40  GENERAL    AVERAGE   AND   MARINE    INSURANCE.        (Ch.   3 

« 

Antiquity  and  Nature. 

This  is  one  of  the  earliest  known  subjects  of  maritime 
law.  It  can  be  traced  back  through  the  Roman  law  to  the 
Rhodian  law,  which  prevailed  before  Lycurgus  laid  the 
foundations  of  Spartan,  or  Solon  of  Athenian,  greatness. 

"Lege  Rhodia  cavetur  ut  si  levandae  navis  gratia  jactus 
mercium  factus  est,  omnium  contributione  sarciatur  quod 
pro  omnibus  datum  est." 

If,  in  a  storm  at  sea,  the  ship  must  be  lightened  in  order 
to  save  her  and  her  contents,  and  a  part  of  the  cargo  is  \ 

thrown  overboard  for  the  purpose,  the  ship,  her  freight 
money,  and  the  remaining  cargo  must  contribute  to  in-  tJ> 
demnify  the  owner  of  the  goods  sacrificed ;  in  other  words,  .* 
the  ship  and  entire  cargo  are  looked  upon  as  a  single  mari- 
time venture,  and  the  loss  is  averaged  on  all.  This  instance 
of  general  average  by  the  throwing  of  goods  overboard,  or 
by  throwing  over  parts  of  the  ship  for  the  same  purpose, 
like  anchors,  boats,  masts,  etc.,  is  called  "jettison."1  But 
there  are  many  other  forms.  Suppose,  for  example,  a  mas- 
ter, for  the  common  safety  of  all  interests,  voluntarily 
strands  his  vessel.  The  salvage  for  getting  her  off  would 
be  a  subject  of  general  average,  as  also  her  value,  in  case 
she  was  not  saved,  but  the  cargo  was  saved.2 

Stranding. 

Some  of  the  most  difficult  questions  of  general  average  . 
arise  when  the  question  is  whether  the  stranding  is  volun- 
tary, which  would  be  a  case  of  general  average,  or  involun- 
tary, which  would  be  a  peril  of  the  sea,  to  be  borne  by  the 
party  who  suffers  from  it.  A  notable  case  on  this  subject 
is  Barnard  v.  Adams,8  which  was  a  case  where  a  ship  that 
had  broken  from  her  moorings  in  a  storm  was  stranded 

§  20.     i  Montgomery  v.  Insurance  Co.  [1901]  Prob.  Div.  147. 
2  Columbian  Ins.  Co.  v.  Ashby,  13  Pet.  331,  10  L.  Ed.  186. 
» 10  How.  270,  13  L.  Ed.  417. 


§  21)  REQUISITES    OF    GENERAL    AVERAGE.  41 

intentionally  by  the  master  in  such  a  way  that  the  cargo 
could  be  saved. 

In  THE  STAR  OF  HOPE,4  fire  was  discovered  upon  a 
vessel,  in  consequence  of  which  she  made  sail  for  the  Bay 
of  San  Antonio,  which  was  the  easiest  port  to  reach.     On 
arrival  there  she  waited  some  time  for  a  pilot  to  guide  her 
into  the  bay,  but  none  came,  and,  the  fire  increasing,  and 
destruction  being  inevitable  if  he  remained  outside,  the  mas- 
ter endeavored  to  take  her  in  himself,  having  in  his  mind 
•      the  risk  of  grounding  in  the  attempt.    In  doing  so  she  struck 
J      upon  a  reef  accidentally.    The  court  held  that  it  was  a  case 
^j  for  general  average,  even  though  the  master  did  not  run 
^  her  upon  that  special  reef  intentionally ;   as  he  intentionally 
jftook  the  chance  of  grounding  in  making  harbor,  and  by 
5  his  act  a  large  portion  of  the  common  venture  was  saved. 

On  the  other  hand,  in  the  case  of  The  Major  William  H. 

l£  Tantum,5  where  the  vessel  grounded  without  the  master's 

intending  to  do  so,  and  in  no  better  place  than  if  he  had  not 

slipped  her  cable,  and  with  no  benefit  in  the  final  result,  it 


^  was  held  that  general  average  could  not  be  enforced,  the 

as 

a 
a. 


master's  main  motive  being  to  save  life. 


REQUISITES  OF  GENERAL  AVERAGE. 

21.  To  give  the  right  to  claim  a  general  average 
contribution,  the  sacrifice 

(a)  Must  be  voluntary,  and  for  the  benefit  of  all. 

(b)  Must  be  made  by  the  master,  or  by  his  au- 

thority 

(c)  Must  not  be  caused  by  any  fault  of  the  party 

asking  the  contribution. 

(d)  Must  be  successful. 

(e)  Must  be  necessary. 

*  9  Wall.  203,  19  L.  Ed.  638. 
«  1  C.  C.  A.  23G,  49  Fed.  ii02. 


42  GENERAL    AVERAGE    AND    MARINE    INSURANCE.         (Ch.   3 

TJce  Sacrifice  must  he  Voluntary,  and  for  the  Benefit  of  All. 

If  a  mast  is  carried  away  by  a  storm,  that  is  a  peril  of 
the  sea, — one  of  the  risks  which  the  ship  carries,  and  which 
she  cannot  ask  any  other  interest  to  aid  her  in  bearing.  If, 
in  consequence  of  a  storm,  and  without  negligence  on  the 
part  of  the  ship  or  her  crew,  water  reaches  the  cargo,  and 
injures  it,  that  must  be  borne  by  that  part  of  the  cargo 
alone  which  is  injured.  There  is  nothing  voluntary  about 
either  of  these  cases.  If  a  ship  springs  a  leak  at  sea,  and 
puts  into  port,  and  has  to  unload  and  afterwards  reship  the 
cargo,  the  expenses  of  repairing  the  leak  must  be  borne  by 
the  ship,  and  cannot  be  charged  as  average.1  Such  a  charge 
would  be  for  the  benefit  of  the  ship  alone,  not  for  the 
benefit  of  all.  In  such  case  the  expense  of  handling  the 
cargo  would  not  come  into  the  average  under  the  English 
decisions,  but  would  under  the  American.2 

On  the  same  principle,  flooding  the  compartments  of  a 
vessel,  with  the  result  of  diminishing  the  damage  to  the 
cargo,  may  be  the  subject  of  general  average.8 

In  the  case  of  Anglo-Argentine  Live-Stock  &  Produce 
Agency  v.  Temperley  Shipping  Co.,4  there  was  a  deck  cargo 
of  live  stock  to  be  carried  from  Buenos  Ayres  to  Deptford 
under  a  contract  which  required  that  the  ship  should  not 
call  at  any  Brazilian  port  before  landing  her  live  stock,  the 
reason  being  that,  if  she  did,  the  cattle  could  not  be  landed 
in  the  United  Kingdom.  After  sailing,  the  ship  sprang  a 
leak,  and  the  master,  for  the  safety  of  all  concerned,  put 
back  to  Bahia.  Consequently  the  cattle  could  not  be  landed 
in  England,  and  had  to  be  sold  elsewhere  at  a  loss.  It  was 
held  that  this  loss  was  a  proper  subject  of  general  average. 

§  23.     i  Svendsen  v.  Wallace,  10  App.  Cas.  404. 
2  THE  STAR.  OF  HOPE,  9  Wall.  208,  19  L.  Ed.  638;    Hobson  v. 
Lord,  92  U.  S.  397,  23  L.  Ed.  613. 

«  The  Wordsworth  (D.  C.)  88  Fed.  313. 
*  [1S99J  2  Q.  B.  403. 


§  21)  REQUISITES    OF    GENERAL    AVERAGE.  43 

In  Iredale  v.  China  Traders'  Ins.  Co.,B  a  cargo  of  coal  on 
a  voyage  from  Cardiff  to  Esquimault  became  heated,  so  that 
the  master  had  to  put  into  a  port  of  refuge,  and  land  the 
coal.  On  landing,  a  survey  was  held  upon  it,  and  it  was 
found  to  be  worthless.  Thereupon  the  voyage  was  aban- 
doned, and  the  freight  was  lost.  The  vessel  owner  claimed 
that  under  these  circumstances  freight  should  be  the  sub- 
ject of  general  average,  but  the  court  held  otherwise,  as  the 
coal  had  really  become  worthless,  not  from  any  act  of  the 
master  in  going  into  port,  but  from  internal  causes,  and 
therefore  it  was  not  a  voluntary  sacrifice. 

It  must  be  Made  by  the  Master,  or  by  his  Authority. 

The  powers  of  the  captain  of  a  ship  are  necessarily  very 
extended.  His  owners  may  be  scattered,  or  inaccessible. 
He  may  not  even  know  who  are  the  owners  of  the  cargo. 
His  voyage  may  extend  around  the  globe,  where  communi- 
cation is  impossible.  Hence  he  has,  ex  necessitate  rei,  pow- 
ers unknown  to  any  other  agent.  He  can  bind  the  ship  and 
owners  for  necessary  funds  to  complete  the  voyage.  He 
can  often  sell  part  of  the  cargo  to  raise  funds  for  the  same 
purpose.  He  can  give  bottomry  or  respondentia  bonds 
with  the  same  object. 

But  he  alone  has  such  powers,  and  his  right  to  incur  a 
general  average  charge  is  limited  to  his  own  ship  and  her 
own  cargo. 

In  The  J.  P.  Donaldson,6  the  master  of  a  tug,  which  had 
a  tow  of  barges,  voluntarily  cast  them  off  in  a  storm  to  save 
his  tug.  The  owners  of  the  barges  libeled  the  tug  for  an 
average  contribution,  the  tug  having  been  saved,  and  the 
barges  lost.  The  court  held  that  it  was  not  a  case  for  gen- 
eral average,  as  the  barges  did  not  occupy  the  relation  to 
the  tug  which  the  cargo  occupies  to  a  ship,  and  the  master 

b  [1899]  2  Q.  B.  350;    Id.  [1900]  2  Q.  B.  515. 
«  107  U.  S.  599,  17  Sup.  Ct.  951,  42  L.  Ed.  292. 


44  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.  3 

of  the  tug  did  not  hold  to  them  the  relation  which  the  mas- 
ter of  a  ship  holds  to  her  cargo. 

In  the  case  of  RALLI  v.  TROOP,7  a  ship  which  had 
caught  on  fire  was  scuttled  by  the  municipal  authorities  of 
the  port,  and  became  a  total  loss ;  but  it  resulted  in  saving 
the  cargo.  The  court  held  that  the  loss  of  the  ship  could 
not  be  charged  against  the  cargo  in  general  average,  for 
the  reason  that  it  was  the  act  of  strangers,  and  not  of  the 
master.  The  learned  opinion  of  Mr.  Justice  Gray  in  this 
case  may  be  specially  recommended  as  an  epitome  of  our 
law  on  the  subject.     He  summarizes  his  conclusions  thus : 

"The  law  of  general  average  is  part  of  the  maritime  law, 
and  not  of  the  municipal  law,  and  applies  to  maritime  ad- 
ventures only. 

"To  constitute  a  general  average  loss,  there  must  be  a 
voluntary  sacrifice  of  part  of  a  maritime  venture,  for  the 
purpose,  and  with  the  effect,  of  saving  the  other  parts  of  the 
adventure  from  an  imminent  peril  impending  over  the 
whole. 

"The  interests  so  saved  must  be  the  sole  object  of  the 
sacrifice,  and  those  interests  only  can  be  required  to  con- 
tribute to  the  loss.  The  safety  of  property  not  included  in 
the  common  adventure  can  neither  be  an  object  of  the  sac- 
rifice nor  a  ground  of  contribution. 

"As  the  sacrifice  must  be  for  the  benefit  of  the  common 
adventure,  and  of  that  adventure  only,  so  it  must  be  made 
by  some  one  specially  charged  with  the  control  and  the 
safety  of  that  adventure,  and  not  be  caused  by  the  com- 
pulsory act  of  others,  whether  private  persons  or  public  au- 
thorities. 

"The  sacrifice,  therefore,  whether  of  ship  or  cargo,  must 
be  by  the  will  or  act  of  its  owner,  or  of  the  master  of  the 
ship,  or  other  person  charged  with  the  control  and  protec- 
tion of  the  common  adventure,  and  representing  and  acting 

7  157  U.  S.  3S6,  15  Sup.  Gt.  G57,  39  L.  Ed.  742. 


§  21)  REQUISITES  OF  GENERAL  AVERAGE.  45 

for  all  the  interests  included  in  that  adventure,  and  those 
interests  only. 

"A  sacrifice  of  vessel  or  cargo  by  the  act  of  a  stranger 
to  the  adventure,  although  authorized  by  the  municipal  law 
to  make  the  sacrifice  for  the  protection  of  its  own  interests, 
or  of  those  of  the  public,  gives  no  right  of  contribution, 
either  for  or  against  those  outside  interests,  or  even  as  be- 
tween the  parties  to  the  common  adventure. 

"The  port  authorities  are  strangers  to  the  maritime  ad- 
venture, and  to  all  the  interests  included  therein.  They  are 
in  no  sense  the  agents  or  representatives  of  the  parties  to 
that  adventure,  either  by  reason  of  any  implied  contract  be- 
tween those  parties,  or  of  any  power  conferred  by  law  over 
the  adventure  as  such. 

"They  have  no  special  authority  or  special  duty  in  re- 
gard to  the  preservation  or  the  destruction  of  any  vessel 
and  her  cargo,  as  distinct  from  the  general  authority  and 
the  general  duty  appertaining  to  them  as  guardians  of  the 
port,  and  of  all  the  property,  on  land  or  water,  within  their 
jurisdiction. 

"Their  right  and  duty  to  preserve  or  destroy  property, 
as  necessity  may  demand,  to  prevent  the  spreading  of  a 
fire,  is  derived  from  the  municipal  law,  and  not  from  the 
law  of  the  sea. 

"Their  sole  office  and  paramount  duty,  and,  it  must  be  pre- 
sumed, their  motive  and  purpose,  in  destroying  ship  or 
cargo  in  order  to  put  out  a  fire,  are  not  to  save  the  rest 
of  a  single  maritime  adventure,  or  to  benefit  private  indi- 
viduals engaged  in  that  adventure,  but  to  protect  and  pre- 
serve all  the  shipping  and  property  in  the  port  for  the 
benefit  of  the  public. 

"In  the  execution  of  this  office,  and  in  the  performance 
of  this  duty,  they  act  under  their  official  responsibility  to 
the  public,  and  are  not  subject  to  be  controlled  by  the 
owners  of  the  adventure,  or  by  the  master  of  the  vessel  as 
their  representative. 


46  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

"In  fine,  the  destruction  of  the  J.  W.  Parker  by  the  act 
of  the  municipal  authorities  of  the  port  of  Calcutta  was  not 
a  voluntary  sacrifice  of  part  of  a  maritime  adventure  for 
the  safety  of  the  rest  of  that  adventure,  made,  according 
to  the  maritime  law,  by  the  owners  of  vessel  or  cargo,  or 
by  the  master  as  the  agent  and  representative  of  both.  But 
it  was  a  compulsory  sacrifice,  made  by  the  paramount  au- 
thority of  public  officers  deriving  their  powers  from  the 
municipal  law,  and  the  municipal  law  only;  and  therefore 
neither  gave  any  right  of  action,  or  of  contribution,  against 
the  owners  of  property  benefited  by  the  sacrifice,  but  not 
included  in  the  maritime  adventure,  nor  yet  any  right  of 
contribution  as  between  the  owners  of  the  different  interests 
included  in  that  adventure." 

But,  if  the  scuttling  was  done  at  the  request  of  the  master, 
the  loss  would  be  the  subject  of  general  average.8 

It  must  not  be  Caused  by  any  Fault.9 

For  instance,  it  is  implied  in  all  contracts  of  shipment 
that  the  vessel  shall  be  seaworthy.10  If  a  voluntary  sacrifice 
is  rendered  necessary  by  a  breach  of  this  warranty,  the 
vessel,  so  far  from  being  entitled  to  recover  in  general  aver- 
age, can  be  held  liable  for  any  injury  to  the  cargo  caused 
thereby.11  For  the  same  reason,  cargo  carried  on  deck, 
of  a  character  not  customarily  carried  on  deck,  cannot  claim 
the  benefit  of  general  average.12 

«  The  Roanoke,  8  0.  C.  A.  67,  59  Fed.  161. 

o  Heye  v.  North  German  Lloyd  (D.  C.)  33  Fed.  60;  The  Irrawaddy, 
171  U.  S.  187,  IS  Sup.  Ct.  831,  43  L.  Ed.  130. 

io  The  Caledonia,  157  U.  S.  124,  15  Sup.  Ct.  537,  39  L.  Ed.  644. 

ii  The  Irrawaddy,  171  U.  S.  187,  18  Sup.  Ct.  831,  43  L.  Ed.  130; 
Pacific  Mail  S.  S.  Co.  v.  Mining  Co.,  20  C.  C.  A.  349,  74  Fed.  564; 
Snow  v.  Perkins  (D.  C.)  39  Fed.  334. 

12  The  Hettie  Ellis  (C.  C.)  20  Fed.  507;  The  John  H.  Cannon  (D. 
C.)  51  Fed.  46;  Wood  v.  Insurance  Co.  (D.  0.)  1  Fed.  235;  Id.  (C.  C.) 
8  Fed.  27. 


§  22)  "marine  insurance"  defined.  47 

It  must  be  Successful. 

The  foundation  of  the  claim  is  that  it  is  for  the  benefit  of 
all.  If  they  are  not  benefitted  thereby,  there  is  no  equitable 
claim  upon  them. 

It  must  he  Necessary. 

This  almost  goes  without  saying.  The  master  is  vested 
with  a  large  discretion  as  to  its  necessity,  and  the  courts  are 
inclined  to  uphold  that  discretion.13 

Remedies  to  Enforce  Contribution. 

In  practice,  when  a  master  has  had  a  disaster,  he  comes 
into  port  for  the  purpose  of  repairs,  and  employs  an  average 
adjuster  to  make  up  a  statement,  pick  out  such  items  as 
are  properly  chargeable  in  general  average,  and  apportion 
them  among  the  several  interests.  The  master  is  entitled 
to  hold  the  cargo  until  this  is  done,  or  until  its  owners  give 
average  bonds  conditioned  to  pay  their  respective  propor- 
tions. 

At  first  there  was  some  question  whether  admiralty  had 
jurisdiction  over  suits  to  compel  the  payment  of  such  pro- 
portion. But  it  is  now  settled  that  the  master  has  a  lien 
upon  the  cargo  to  enforce  their  payment,  that  such  lien 
may  be  asserted  in  an  admiralty  court,  and  that  suits  on 
average  bonds  are  also  sustainable  in  admiralty.14 

"  MARINE  INSURANCE"  DEFINED. 

22.  Marine  insurance  is  an  insurance  against  risks 
connected  -with  navigation,  to  which  a  ship 
cargo,  freight,  or  other  insurable  interest  in 
such  property  may  be  exposed,  during  a  cer- 
tain voyage  or  a  fixed  period  of  time. 

i«  Lawrence  v.  Minturn,  17  How.  100,  15  L.  Ed.  58. 

14  Dupont  do  Xf'mours  v.   Vance,   ir>  How.   102.   1"   L.    Ed.   584; 
The  San  Fernando  (C.  C.)  12  Fed.  341.    On  this  general  subjed 
■Me,  also,  1  Pars.  SI  Ipp.  &  Adui.  33S    ITS. 


48  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

23.  MARITIME  CHARACTER  OF  CONTRACTS— 
Such  contracts  are  cognizable  in  the  ad- 
miralty, but  are  not  so  connected  with  the 
ship  as  to  give  a  proceeding  against  the 
ship  herself  for  unpaid  premiums. 

Marine  insurance  is  of  great  antiquity,  and  is  recognized 
as   within  the  jurisdiction  of  the  admiralty  courts  by  the 
leading  continental  courts  and  authorities.     In  America  it 
was  so  held  by  Mr.  Justice  Story  in  the  great  case  of  DE 
LOVIO  v.  BOIT,1  and  was  definitely  settled  by  the  decision 
of  the  supreme  court  in  the  case  of  New  England  Mut. 
Marine  Ins.  Co.  v.  Dunham.2     But,  while  such  contracts  are 
maritime,  the  distinction  heretofore  drawn  still  prevails,  as 
mere  preliminary  contracts  for  insurance,  or  suits  to  reform  a 
policy  not  in  accordance  with  the  preliminary  contract,  are 
not  maritime.3     Though  insurance  contracts  are  maritime, 
a  claim  for  unpaid  premiums  can  only  be  asserted  against 
the  party  taking  out  the  insurance,  and  cannot  be  made 
the  basis  of  a  proceeding  in  rem  against  the  vessel  insured.* 
The  reason  of  this  is  that  insurance  is  really  for  the  benefit 
of  the  owner  alone.    It  does  not  in  any  way  benefit  the  vessel 
as  a  vessel.     It  does  not  render  her  more  competent  to 
perform  her  voyage,  or  aid  her  to  fulfill  the  purpose  of  her 
creation. 

INSURABLE  INTEREST. 

24.  The  party  effecting  marine  insurance  must  be 
so  situated  with  regard  to  the  thing  insured 
as     to    expect    pecuniary    benefit    from    its 

§§  22-23.     i  Fed.  Cas.  No.  3,776. 
2  11  Wall.  1,  20  L.  Ed.  90. 

8  Andrews  v.  Insurance  Co.,  3  Mason,  6,  Fed.  Cas.  No.  374;   Mar- 
quardt  v.  French  (D.  C.)  53  Fed.  603. 

4  The  Daisy  Day  (C.  C.)  40  Fed.  603;  The  Hope  (D.  C.)  49  Fed.  279. 


§   24)  INSURABLE    INTEREST.  49 

safety,  or  pecuniary  loss  from  its  destruc- 
tion. 

This  does  not  necessarily  mean  that  he  must  have  an 
insurable  interest  at  the  time  of  effecting  the  policy.  He 
must  have  it,  however,  at  the  time  of  the  loss.  For  instance, 
it  is  frequently  the  case  that  vessels  whose  whereabouts 
are  unknown  may  be  insured  "lost  or  not  lost,"  and  this 
insurance  is  valid  even  though  at  the  time  it  is  effected  it 
may  turn  out  that  the  vessel  has  been  totally  lost.  In  the 
case  of  HOOPER  v.  ROBINSON,1  the  court  quotes  with 
approval  a  paragraph  from  Arnould's  Insurance,  which  says 
that  the  insurable  interest  subsisting  during  the  risk  and 
at  the  time  of  loss  is  sufficient,  and  the  assured  need  not 
allege  or  prove  that  he  was  interested  at  the  time  of  effecting 
the  policy.  The  court  also  says  that  where  the  insurance  is 
"lost  or  not  lost"  the  thing  insured  may  be  irrecoverably  lost 
when  the  contract  is  entered  into,  and  yet  the  contract  is 
valid,  for  it  is  a  stipulation  for  indemnity  against  past  as 
well  as  future  losses,  and  the  law  upholds  it.  In  the  same 
case  the  court  says :  "A  right  of  property  in  a  thing  is  not 
always  indispensable  to  the  insurable  interest.  Injury  from 
its  loss  or  benefit  from  its  preservation  to  accrue  to  the  as- 
sured may  be  sufficient,  and  a  contingent  interest  thus  aris- 
ing may  be  made  the  subject  of  a  policy." 

In  the  case  of  Buck  v.  Chesapeake  Ins.  Co.,2  the  supreme 
court  says  that  interest  does  not  mean  property. 

A  contract  of  marine  insurance,  like  other  contracts  of 
insurance,  is  a  mere  contract  of  indemnity,  and  hence  it 
follows  that  the  party  taking  out  the  insurance  can  only 
claim  indemnity  for  his  actual  loss,  and  cannot  make  a 
wager  policy.    An  absolute  title  or  property  is  not  necessary 

§24.  i  98  U.  S.  528,  25  L.  Ed.  219.  See,  also,  Woodside  v.  Insur- 
ance Office  (D.  C.)  84  Fed.  2S3;  Canton  Ins.  Office  v.  Woodside,  33 
C.  C.  A.  63,  90  Fed.  301. 

i  1  Pet.  151,  7  L.  Ed.  90. 

HUGHES.AD.^l 


50  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

for  the  validity  of  such  insurance.  For  instance,  in  the 
case  of  China  Mut.  Ins.  Co.  v.  Ward,8  it  was  held  that  ad- 
vances by  a  ship's  husband,  accompanied  by  no  lien,  but 
constituting  a  mere  personal  debt  of  the  shipowner,  were 
not  such  an  interest  in  property  as  gave  him  an  insurable 
interest.  On  the  other  hand,  in  the  case  of  The  Gulnare,* 
an  agent  who  was  operating  a  vessel  on  commission,  with 
an  actual  pledge  of  the  vessel  as  security,  was  held  to  have 
an  insurable  interest. 

In  the  case  of  Merchants'  Mut.  Ins.  Co.  v.  Baring,5  it 
was  held  that  advances  of  money  for  the  benefit  of  the  ship 
which  had  attached  to  them  a  lien  upon  the  ship  for  their 
repayment  gave  an  insurable  interest. 

As  it  is  possible  thus  to  insure  not  simply  the  entire 
property,  but  different  interests  in  the  property,  it  follows 
that  different  parties  may  insure  different  interests  in  the 
same  property  without  its  constituting  double  insurance. 

In  the  case  of  International  Nav.  Co.  v.  Insurance  Co. 
of  North  America,6  it  was  held  that  a  policy  on  disburse- 
ments, which  covered  many  subjects  connected  with  the 
use  of  the  ship  as  well  as  any  interest  in  the  ship  not  covered 
by  insurance,  which  was  against  total  loss  only,  was  not 
double  insurance  with  the  policy  on  the  ship  herself  cover- 
ing partial  as  well  as  total  loss.  The  subject-matter  of  the 
insurance  was  entirely  different. 

In  the  case  of  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Knick- 
erbocker Steam  Towage  Co.,7  a  marine  policy  permitting 
the  tug  to  navigate  certain  waters  provided  that,  while  she 

»  8  C.  0.  A.  229,  59  Fed.  712.  See,  also.  Seagrave  v.  Insurance  Co., 
L.  R.  1  C.  P.  305. 

«  (C.  0.)  42  Fed.  861. 

e  20  Wall.  159,  22  L.  Ed.  250.  See,  also,  The  Fern  Holme  (D.  C.) 
46  Fed.  119;  Providence  Washington  Ins.  Co.  v.  Bowring,  1  0.  C.  A. 
683.  50  Fed.  613. 

«  (D.  C.)  100  Fed.  304. 

*  36  C.  C.  A.  19,  93  Fed.  931. 


§§    25-26)       CONDITIONS    IN    CONTRACTS    OF   INSURANCE.  51 

was  out  of  these  waters,  the  policy  should  be  merely  sus- 
pended, and  should  reattach  when  she  returned  to  such 
waters.  The  vessel,  intending  to  go  out  of  these  waters, 
thereupon  procured  insurance  during  such  deviation.  The 
court  held  that  this  was  not  double  insurance,  as  the  two 
policies  necessarily  did  not  overlap. 

Where  the  name  of  the  insured  is  not  given,  but  general 
terms,  "for  whom  it  may  concern,"  are  used,  oral  proof  is 
admissible  to  show  who  are  covered  by  it. 

Where  the  policy  names  the  party  covered,  the  presump- 
tion is  that  he  has  an  insurable  interest,  as  the  issue  of  the 
policy  would  be  prima  facie  evidence  of  that  fact,  and  it 
would  be  upon  the  insurance  company  to  prove  the  con- 
trary.8 

The  insurable  interest  of  a  vessel  owner  in  a  ship  covered 
by  a  bottomry  bond  is  simply  the  excess  of  the  ship's  value 
over  the  bottomry  bond.  As  this  bond  is  not  payable  in  the 
event  of  a  total  loss  of  the  vessel,  that  portion  of  the  vessel's 
value  is  not  at  risk,  as  far  as  the  owner  is  concerned,  but  the 
holder  of  the  bottomry  bond  carries  that  risk;  hence  the 
only  risk  carried  by  the  owner  in  such  case  is  the  excess  over 
the  value  of  the  bond.8 


CONDITIONS  IN  CONTRACTS  OF  INSURANCE. 

25.  CONTRACTS  OF  MARINE  INSURANCE  ARE 

SUBJECT  TO  CERTAIN  CONDITIONS,  ex- 
press or  implied,  a  breach  of 'which  avoids  the 
contract. 

26.  MISREPRESENTATION       AND       CONCEAL- 

MENT— Any  misrepresentation  or  conceal- 

«  Nantes  v.  Thompson,  2  East,  386. 

o  Delaware  Mut  Safety  Ins.  Co.  v.  Gossler,  96  U.  S.  645,  24  L. 

Ed.  803. 


02  GENERAL    AVERAGE    AND    MARINE    INSURANCE.         (Ch.   3 

ment  of  a   material  fact,  or  any  breach  of 
"warranty  of  any  fact,  -will  avoid  the  policy. 

The  law  on  the  subject  of  representations  in  insurance 
policies  may  be  said  to  be  generally  the  same  as  in  any  other 
contract.  Any  representation  of  a  material  fact,  or  a  fact 
which  would  influence  the  judgment  of  a  prudent  under- 
writer, as  to  taking  the  risk  or  assessing  the  premium,  must 
be  substantially  true,  and  every  fact  of  this  sort  which  is 
within  the  knowledge  of  the  assured,  and  not  in  the  knowl- 
edge of  the  underwriter,  must  be  stated.  The  courts,  per- 
haps, have  been  a  little  stricter  in  reference  to  marine  in- 
surance policies  than  other  contracts,  on  account  of  the  pe- 
culiar nature  of  the  business.  A  few  cases  may  illustrate 
the  doctrine  more  plainly. 

In  Hazard  v.  New  England  Ins.  Co.,1  the  vessel  was  rep- 
resented as  a  coppered  ship.  At  the  time  she  was  in  the 
port  of  New  York,  and  the  party  applying  for  the  insurance 
wrote  from  there  to  Boston  to  get  it.  The  expression  had 
different  meanings  in  New  York  and  Boston.  The  court 
held  that  the  New  York  meaning  was  to  be  taken.  If  the 
representation  had  not  come  up  to  that  meaning,  the  policy 
would  undoubtedly  have  been  void. 

In  the  same  case  it  was  held  that  an  underwriter  is  pre- 
sumed to  know  the  usages  of  foreign  ports  to  which  insured 
vessels  are  destined ;  also  the  usages  of  trade,  and  the 
political  conditions  of  foreign  nations ;  and  that,  therefore, 
such  matters  of  common  knowledge  as  this  need  not  be  ex- 
pressly stated. 

In  the  case  of  Buck  v.  Chesapeake  Ins.  Co.,2  which  was 
a  policy  "for  whom  it  might  concern,"  the  court  held  that 
it  was  not  incumbent  upon  the  party  taking  out  the  insur- 
ance to  state  who  were  interested  in  it,  unless  the  question 

§§  25-26.     i  8  Pet.  557,  8  L.  Ed.  1043. 
2  1  Pet.  151,  7  L.  Ed.  90. 


§§    25-26)       CONDITIONS    IN    CONTRACTS    OF    INSURANCE.  53 

was  asked,  but  the  questions  asked  must  be  answered  truth- 
fully. 

The  case  of  SUN  MUT.  INS.  CO.  v.  OCEAN  INS.  CO.» 
was  a  reinsurance  case,  where  a  company  which  had  insured 
a  vessel  on  certain  voyages  reinsured  the  risk  in  another 
company.  They  failed  to  state,  in  the  information  which 
they  gave  the  second  company  for  reinsurance,  the  exist- 
ence of  an  important  charter,  of  which  they  knew,  and  of 
which  the  second  company  did  not  know.  The  policy  was 
held  void.  The  court  said:  "It  thus  appears  that  at  the 
time  of  the  loss  Melcher  had  insurance  on  two  concurrent 
charters  and  his  primage  thereon  during  one  voyage,  being 
insured,  besides  his  interest  in  the  ship,  on  double  the 
amount  of  its  possible  earnings  of  freight  for  one  voyage. 
This  fact  was  known  to  the  Ocean  Company  at  the  time, 
and  was  not  communicated  by  it  to  the  Sun  Company,  which 
was  without  other  knowledge  upon  the  subject,  and  exe- 
cuted its  policy  to  the  Ocean  Company  in  ignorance  of  it. 

"That  knowledge  of  the  circumstance  was  material  and 
important  to  the  underwriter,  as  likely  to  influence  his  judg- 
ment in  accepting  the  risk,  we  think  is  so  manifest  to  com- 
mon reason  as  to  need  no  proof  of  usage  or  opinion  among 
those  engaged  in  the  business.  It  was  a  flagrant  case  of 
overinsurance  upon  its  face,  and  made  it  the  pecuniary  in- 
terest of  the  master  in  charge  of  the  ship  to  forego  and 
neglect  the  duty  which  he  owed  to  all  interested  in  her 
safety.  Had  it  been  known,  it  is  reasonable  to  believe  that 
a  prudent  underwriter  would  not  have  accepted  the  pro- 
posal as  made,  and,  where  the  fact  of  the  contract  is  in  dis- 
pute, as  here,  it  corroborates  the  denial  of  the  appellants. 
The  concealment,  whether  intentional  or  inadvertent,  we 
have  no  hesitation  in  saying,  avoids  the  policy,  if  actually 
intended  to  cover  the  risk  for  which  the  claim  is  made. 

"In  respect  to  the  duty  of  disclosing  all  material  facts, 

•  107  U.  S.  485,  1  Sup.  Ct.  5S2,  27  L.  Ed.  387. 


54  GENERAL    AVERAGE   AND    MARINE    INSURANCE.         (Ch.  3 

the  case  of  reinsurance  does  not  differ  from  that  of  an  orig- 
inal insurance.  The  obligation  in  both  cases  is  one 
uberrimae  fidei.  The  duty  of  communication,  indeed,  is  inde- 
pendent of  the  intention,  and  is  violated  by  the  fact  of  con- 
cealment, even  where  there  is  no  design  to  deceive.  The 
exaction  of  information  in  some  instances  may  be  greater 
in  a  case  of  reinsurance  than  as  between  the  parties  to  an 
original  insurance.  In  the  former,  the  party  seeking  to 
shift  the  risk  he  has  taken  is  bound  to  communicate  his 
knowledge  of  the  character  of  the  original  insured,  where 
such  information  would  be  likely  to  influence  the  judgment 
of  an  underwriter ;  while  in  the  latter  the  party,  in  the  lan- 
guage of  Bronson,  J.,  in  the  case  of  New  York  Bowery 
Fire  Ins.  Co.  v.  Insurance  Co.,  17  Wend.  (N.  Y.)  359,  367, 
is  'not  bound,  nor  could  it  be  expected  that  he  should  speak 
evil  of  himself.' 

"Mr.  Duer  (2  Ins.  398,  Lect.  13,  pt.  1,  §  13)  states  as  a 
part  of  the  rule  the  following  proposition : 

"  'Sec.  13.  The  assured  will  not  be  allowed  to  protect  him- 
self against  the  charge  of  an  undue  concealment  by  evi- 
dence that  he  had  disclosed  to  the  underwriters,  in  general 
terms,  the  information  that  he  possessed.  Where  his  own 
information  is  specific,  it  must  be  communicated  in  the  terms 
in  which  it  was  received.  General  terms  may  include  the 
truth,  but  may  fail  to  convey  it  with  its  proper  force,  and  in 
all  its  extent.  Nor  will  the  assured  be  permitted  to  urge, 
as  an  excuse  for  his  omission  to  communicate  material  facts. 
that  they  were  actually  known  to  the  underwriters,  unless 
it  appears  that  their  knowledge  was  as  particular  and  full 
as  his  own  information.  It  is  the  duty  of  the  assured  to 
place  the  underwriter  in  the  same  situation  as  himself;  to 
give  to  him  the  same  means  and  opportunity  of  judging 
of  the  value  of  the  risks ;  and,  when  any  circumstance  is 
withheld,  however  slight  and  immaterial  it  may  have  seemed 
to  himself,  that,  if  disclosed,  would  probably  have  influ- 


§§    25-26)       CONDITIONS    IN    CONTRACTS   OF    INSURANCE.  55 

enced  the  terms  of  the  insurance,  the  concealment  vitiates 
the  policy.'  " 

If  the  concealment  of  facts  is  by  the  agent  of  the  insured, 
even  though  the  insured  did  not  know  it,  the  policy  is 
avoided,  for  the  agent  had  the  opportunity  to  communicate 
the  facts,  and  did  not.* 

In  England  it  is  the  practice  to  have  a  preliminary  binder 
before  the  issuing  of  the  main  policy,  and  the  initialing  of  this 
by  the  parties  is  treated  by  them  as  morally  binding,  although 
it  is  unenforceable  as  a  contract  for  want  of  a  stamp. 

In  the  case  of  Cory  v.  Patton,6  after  this  preliminary  con- 
tract was  made,  but  before  the  policy  was  issued,  certain 
material  facts  came  to  the  knowledge  of  the  agent  of  the 
insured;  the  fact  so  coming  to  his  knowledge  being  the 
very  material  fact  that  the  ship  had  been  lost.  The  court 
held,  however,  that  it  was  not  incumbent  upon  the  insured 
to  communicate  this  fact,  even  though  the  preliminary  con- 
tract was  not  binding,  and  the  policy  had  not  been  issued, 
because  he  had  given  all  the  material  facts  up  to  the  time 
of  the  preliminary  contract,  and  they  would  not  tempt  the 
underwriter  to  repudiate  an  obligation  treated  as  a  moral 
one  by  those  in  the  business. 

A  leading  case  on  this  general  subject  is  that  of  IONI- 
DES  v.  PENDER.6  There  the  assured  greatly  overvalued 
the  goods  without  disclosing  the  real  valuation  to  the  un- 
derwriter, and  it  was  shown  that  the  question  of  valuation 
is,  among  underwriters,  a  very  material  consideration.  The 
court  held  that  this  misrepresentation  vitiated  the  policy. 

The  general  doctrine  that  a  warranty,  even  of  an  imma- 
terial matter,  if  broken,  avoids  the  policy,  is  well  settled.7 

«  McLaDahan  v.  Insurance  Co.,  1  Pet.  171,  7  L.  Ed.  98. 

»  L.  R.  9  Q.  B.  577.  The  case  of  Merchants'  Mut.  Ins.  Co.  v.  Ly- 
man, 15  Wall.  664,  21  L.  Ed.  246,  can  hardly  be  considered  in  con- 
flict with  this. 

e  L.  R.  9  Q.  B.  531. 

t  1  Pars.  Ins.  337. 


56  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 


SAME— SEAWORTHINESS. 

27.  It  is  an  implied  condition  of  marine  insurance 
on  vessel,  cargo,  or  freight  that  the  vessel 
shall  be  sea-worthy,  -which  means  that  she 
must  be  sufficiently  tight,  stanch,  and  strong 
to  resist  the  ordinary  attacks  of  wind  and 
sea  during  the  voyage  for  -which  she  is  in- 
sured, and  that  she  must  be  properly  manned 
and  equipped  for  the  voyage. 

The  question  what  constitutes  seaworthiness  is,  neces- 
sarily, a  very  variable  one.  A  vessel  which  is  seaworthy 
for  river  navigation  may  not  be  for  bay  navigation,  and  a 
vessel  which  is  seaworthy  for  bay  navigation  may  not  be  for 
ocean  navigation.  Hence  the  seaworthiness  implied  means 
seaworthiness  for  the  voyage  insured.  It  applies  not  only 
to  the  hull  of  the  vessel,  but  to  her  outfit,  including  her  crew. 
She  must  be  properly  fitted  out  for  the  voyage  which  she  is 
to  undertake,  and  she  must  have  a  sufficient  and  competent 
crew. 

In  Pope  v.  Swiss  Lloyd  Ins.  Co.,1  it  was  held  that  a 
vessel  with  insufficient  ground  tackle  to  hold  her  against 
ordinary  incidents  of  navigation,  including  ordinarily  heavy 
weather,  was  not  seaworthy. 

In  the  case  of  RICHELIEU  &  O.  NAV.  CO.  v.  BOSTON 
MARINE  INS.  CO.,2  it  was  held  that  a  vessel  whose  com- 
pass was  defective,  though  not  known  to  be  so,  was  unsea- 
worthy ;  for  it  is  implied  not  merely  that  the  vessel  owner  will 
use  ordinary  care  to  keep  his  vessel  seaworthy,  but  that  slie 
actually  is  seaworthy. 

In  the  case  of  The   Niagara  3   (which  was  a  suit  by  a 

§  27.     i  (D.  C.)  4  Fed.  153. 

a  136  IT.  S.  408,  10  Sup.  Gt.  934,  34  L.  Ed.  398. 

«  21  How.  7,  16  L.  Ed.  41. 


§    27)  CONDITIONS    IN    CONTRACTS    OF    INSURANCE.  57 

shipper,  not  an  insurance  case,  but  which  applies  on  this 
point)  the  court  says :  "A  carrier's  first  duty,  and  one  that 
is  implied  by  law,  when  he  is  engaged  in  transporting  goods 
by  water,  is  to  provide  a  seaworthy  vessel,  tight  and  stanch, 
and  well  furnished  with  suitable  tackle,  sails,  or  motive 
power,  as  the  case  may  be,  and  furniture  necessary  for  the 
voyage.  She  must  also  be  provided  with  a  crew,  adequate 
in  number,  and  sufficient  and  competent  for  the  voyage, 
with  reference  to  its  length  and  other  particulars,  and  with 
a  competent  and  skillful  master,  of  sound  judgment  and  dis- 
cretion ;  and,  in  general,  especially  in  steamships  and  vessels 
of  the  larger  size,  with  some  person  of  sufficient  ability  and 
experience  to  supply  his  place,  temporarily,  at  least,  in  case 
of  his  sickness  or  physical  disqualification.  Owners  must 
see  to  it  that  the  master  is  qualified  for  his  situation,  as  they 
are,  in  general,  in  respect  to  goods  transported  for  hire, 
responsible  for  his  acts  and  negligence." 

In  the  case  of  STEEL  v.  STATE  LINE  S.  S.  CO.,4 
Lord  Cairns  defines  seaworthiness  as  follows  : 

"I  think  there  cannot  be  any  reasonable  doubt  entertained 
that  this  is  a  contract  which  not  merely  engages  the  ship- 
owner to  deliver  the  goods  in  the  condition  mentioned,  but 
that  it  also  contains  in  it  a  representation  and  an  engage- 
ment— a  contract — by  the  shipowner  that  the  ship  on  which 
the  wheat  is  placed  is,  at  the  time  of  its  departure,  reason- 
ably fit  for  accomplishing  the  service  which  the  shipowner 
engages  to  perform.  Reasonably  fit  to  accomplish  that 
service  the  ship  cannot  be  unless  it  is  seaworthy.  By  'sea- 
worthy,' my  lords,  I  do  not  desire  to  point  to  any  technical 
meaning  of  the  term,  but  to  express  that  the  ship  should 
be  in  a  condition  to  encounter  whatever  perils  of  the  sea 
a  ship  of  that  kind,  and  laden  in  that  way,  may  be  fairly  ex- 
pected to  encounter  in  crossing  the  Atlantic.     *     *     * 

*  3  A  pp.  Cas.  72.  See,  also,  Bullard  v.  Insurance  Co.,  1  Curt.  148, 
Fed.  Cas.  No.  2,122. 


58  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

"But,  my  lords,  if  that  is  so,  it  must  be  from  this,  and  only 
from  this,  that  in  a  contract  of  this  kind  there  is  implied  an 
engagement  that  the  ship  shall  be  reasonably  fit  for  per- 
forming the  service  which  she  undertakes.  In  principle, 
I  think  there  can  be  no  doubt  that  this  would  be  the  meaning 
of  the  contract;  but  it  appears  to  me  that  the  question  is 
really  concluded  by  authority.  It  is  sufficient  to  refer  to 
the  case  of  Lyon  v.  Mells,  *  in  the  court  of  queen's  bench 
during  the  time  of  Lord  E'llenborough,  and  to  the  very 
strong  and  extremely  well  considered  expression  of  the 
law  which  fell  from  the  late  Lord  Wensleydale  when  he  was 
a  judge  of  the  court  of  exchequer,  and  was  advising  your 
lordship's  house  in  the  case  of  Gibson  v.  Small.! 

As  a  general  rule,  the  burden  of  proving  unseaworthiness 
is  on  the  underwriter.6 

But  where  a  vessel  which  has  been  exposed  to  no  unusual 
peril  suddenly  develops  a  leak  within  a  short  time,  this 
may  raise  a  presumption  of  unseaworthiness,  and  the  burden 
may  shift  to  the  assured.6  In  reference  to  this  Judge  Curtis 
says : 

"But,  as  I  have  already  indicated,  the  presumption  is  that 
this  brig  was  seaworthy,  and  the  burden  of  proof  is  on  the 
underwriters  by  some  sufficient  evidence  to  remove  this  pre- 
sumption. This  may  be  done  either  by  proving  the  existence 
of  defects  amounting  to  unseaworthiness  before  she  sailed, 
or  that  she  broke  down  during  the  voyage,  not  having 
encountered  any  extraordinary  action  of  the  winds  or 
waves,  or  any  other  peril  of  the  sea  sufficient  to  produce  such 
effect  upon  a  seaworthy  vessel,  or  by  showing  that  an 
examination  during  the  voyage  disclosed  such  a  state  of 
decay  and  weakness  as  amounted  to  unseaworthiness,  for 

*  5  East.  428.  I4H.  L.  Cas.  353. 

8  Eatchelder  v.  Insurance  Co.  (D.  C.)  30  Fed.  459;  Pickup  v.  Insur- 
ance Co.,  3  Q.  B.  Div.  594. 

e  Bullard  v.  Insurance  Co.,  1  Curt.  148,  Fed.  Cas.  No.  2,122.  See, 
also,  Moore  v.  Underwriters  (C.  C.)  14  Fed.  226.  Anderson  v.  Morice, 
L.  R.  10  C.  P.  609;   Ajuin  v.  Insurance  Co.  [1901]  A  pp.  Cas.  362. 


§    27)  CONDITIONS    IN    CONTRACTS    OF    INSURANCE.  59 

which  the  lapse  of  time  and  the  occurrences  of  the  voyage 
would  not  account.     *     *     * 

"There  is  such  a  standard,  necessarily  expressed  in  general 
terms,  but  capable  of  being  applied,  by  an  intelligent  jury, 
to  the  proofs  in  the  cause.  The  hull  of  the  vessel  must  be 
so  tight,  stanch,  and  strong  as  to  be  competent  to  resist 
the  ordinary  attacks  of  wind  and  sea  during  the  voyage  for 
which  she  is  insured.  You  will  apply  that  standard  to  this 
case." 

This  warranty  of  seaworthiness  applies  at  the  commence- 
ment of  the  voyage.  A  vessel  may  be  in  port,  and  require 
extensive  repairs,  but,  if  these  repairs  are  made  before  she 
sails,  so  as  to  make  her  seaworthy  at  sailing,  she  fulfills 
what  is  required  of  her.7 

This  condition  always  applies  to  insurance  under  voyage 
policies.  As  to  time  policies,  there  is  quite  a  difference  be- 
tween English  and  American  decisions.  Under  the  Ameri- 
can decisions  a  vessel,  when  insured  by  a  time  policy,  must 
be  seaworthy  at  the  commencement  of  the  risk.  If,  when 
so  seaworthy,  she  sustains  damage,  and  is  not  refitted  at  an 
intermediate  port,  and  a  prudent  master  would  have  refitted 
her  there,  and  she  is  lost  in  consequence  of  the  failure  to 
refit  her,  she  would  be  unseaworthy,  and  the  underwriter 
would  not  be  liable.  If,  however,  she  is  not  refitted,  and  is 
lost  from  some  entirely  different  cause,  the  underwriters 
would  be  liable,  even  though  a  prudent  master  would  have 
had  her  refitted.8 

In  England,  on  the  other  hand,  there  is  no  warranty  of 
seaworthiness  at  all  on  time  policies,  either  at  the  com- 
mencement of  the  voyage  or  at  any  other  time.0 

This  condition  only  applies  to  the  vessel.     There  is  no 

7  McLanaban  v.  Insurance  Co.,  1  Pet.  171,  184,  7  L.  Ed.  98. 
s  Union  Ins.  Co.  v.  Smith,  124  U.  S.  405,  8  Sup.  Ct.  534,  31  L. 
Ed.  407. 

»  Dudgeon  v.  Pembroke,  2  App.  Cas.  284. 


60  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

implied  condition  that  the  cargo  shall  be  fitted  to  withstand 
the  voyage  for  which  it  is  insured.10 


SAME— DEVIATION. 

28.  It  is  an  implied  condition  of  a  voyage  policy 
that  the  vessel  will  take  the  course  of  sailing 
fixed  by  commercial  custom  between  two 
ports,  or,  if  none  is  fixed,  that  it  will  take  the 
course  which  a  master  of  ordinary  skill 
would  adopt.  Any  departure  from  such 
course,  or  any  unreasonable  delay  in  pursu- 
ing the  voyage,  constitutes  what  is  known 
as  a  "deviation." 

The  reason  of  this  implied  condition  is  that  such  an  act 
on  the  part  of  the  vessel  substitutes  a  new  risk  different 
from  the  one  which  the  underwriters  have  assumed,  and, 
after  such  deviation  commences,  the  insurers  are  not  liable 
for  any  loss  incurred  during  the  deviation.  The  cases  on 
this  subject  are  numerous.  Whether  an  act  is  a  deviation 
depends  largely  upon  the  particular  language  of  the  policy 
and  the  course  of  trade. 

In  the  case  of  HEARNE  v.  NEW  ENGLAND  MUT. 
MARINE  INS.  CO.,1  a  vessel  was  insured  to  a  port  in 
Cuba,  and  at  and  thence  to  a  port  of  advice  and  discharge  in 
Europe.  The  vessel  went  to  the  port  in  Cuba,  and  dis- 
charged, and  then,  instead  of  sailing  direct  to  Europe,  sailed 
for  another  port  in  Cuba  to  reload,  and  was  lost  on  her  way 
there.  The  court  held  that  this  constituted  a  deviation,  and 
released  the  underwriters,  and  that,  in  the  face  of  the  ex- 
press language  of  the  contract,  it  was  not  admissible  to 
prove  a  usage  in  such  voyages  to  go  to  two  ports  in  Cuba, 
one  for  discharge  and  another  for  reloading. 

io  Koebel  v.  Saunders,  17  C.  B.  N.  S.  (112  E.  C  L.)  71. 
§  28.     i  20  Wall.  4S8,  22  L.  Ed.  395. 


§    28)  CONDITIONS    IN    CONTRACTS    OF    INSURANCE.  61 

In  the  case  of  Columbian  Ins.  Co.  v.  Catlett,2  which  was 
the  case  of  a  voyage  policy  from  Alexandria  to  the  West 
Indies  and  back,  it  was  held  that,  as  the  known  usage  of 
the  trade  allowed  delay  to  accomplish  the  object  of  the 
voyage  by  selling  out  the  cargo,  it  was  not  a  deviation  to 
remain  for  that  purpose,  provided  the  time  so  occupied  was 
not  unreasonable. 

In  the  case  of  Wood  v.  Pleasants,8  it  was  held  that  a 
stoppage  on  the  way  for  the  purpose  of  taking  on  water, 
and  only  for  that  purpose,  was  not  a  deviation,  assuming 
that  the  vessel  had  a  proper  supply  of  water  at  the  time  of 
sailing. 

In  the  case  of  West  v.  Columbian  Ins.  Co.,4  a  vessel  in- 
sured on  a  voyage  to  Pernambuco  unnecessarily  anchored 
off  port,  when  she  might  have  gone  directly  in.  It  was  held 
that  this  unnecessary  delay  was  such  a  deviation  as  dis- 
charged the  underwriters. 

Under  the  decisions,  it  is  not  a  deviation  for  a  vessel  to 
delay,  or  go  out  of  her  way,  in  order  to  save  life  at  sea.  It 
is,  however,  a  deviation  for  her  to  delay,  or  go  out  of  her 
way,  for  the  purpose  of  saving  property.  Under  the  special 
facts  of  special  cases  this  principle  is  sometimes  difficult  to 
apply,  for  a  vessel  in  deviating  to  save  life  can  sometimes 
best  accomplish  it  by  saving  property,  as,  for  instance,  by 
taking  a  disabled  vessel  in  tow.  But  when,  after  doing  so, 
the  facts  are  such  that  the  crew  can  be  saved  without  the 
property,  a  continued  attempt  to  save  the  property  is  un- 
doubtedly a  deviation. 

A  leading  case  on  this  subject  is  SCARAMANGA  v. 
STAMP.6  It  was  a  case  arising  out  of  a  charter  party 
(in  which  there  is  also  an  implied  warranty  not  to  deviate), 

2  12  Wheat.  383,  6  L.  Ed.  664. 
«  Fed.  CM.  No.  17,961,  3  Wash.  C.  C.  201. 

*  Fed.  Cas.  No.  17,421,  5  Cranch,  C.  C.  309.     See,  also,  Martin  v. 
Insurance  Co.,  Fed.  Cas.  No.  9.161,  2  Wash.  C.  C.  254. 
6  4  C.  P.  Div.  316;   Id.,  5  C.  P.  Div.  295. 


62  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

where  a  disabled  vessel  was  taken  in  tow,  causing  consid- 
erable delay  to  the  other  vessel.  The  court  held,  under  the 
facts,  that  the  delay  was  unjustifiable,  and  the  insurers  were 
released. 

On  the  other  hand,  in  the  case  of  Crocker  v.  Jackson,6 
Judge  Sprague  held  that  a  departure  of  the  vessel  from  her 
course  in  order  to  ascertain  whether  those  on  board  a  ves- 
sel in  apparent  distress  needed  relief,  and  the  delay  in  order 
to  offer  such  relief,  was  not  a  deviation,  though  such  action 
for  the  mere  purpose  of  saving  property  would  be.  He 
held,  also,  that,  if  both  motives  existed,  it  would  not  be  a 
deviation,  and  that,  if  the  circumstances  were  not  decisive, 
or  were  ambiguous,  as  to  the  motives  of  the  master  of  the 
salving  vessel,  the  court  would  give  him  the  benefit  of  the 
doubt. 
Distinction  hetween  Deviation  and  Change  of  Voyage. 

It  is  important  to  bear  in  mind  the  distinction  between 
a  deviation  and  an  entire  change  of  voyage.  As  to  the  for- 
mer, a  mere  intention  formed  to  deviate  does  not  avoid  the 
policy  until  that  point  is  reached  where  the  act  of  deviating 
commences.  Up  to  that  point  the  policy  is  still  in  force. 
On  the  other  hand,  a  change  of  voyage  avoids  the  policy 
ab  initio,  because  that  substitutes  a  different  risk  from  the 
one  on  which  the  underwriter  has  made  his  calculations. 

The  usual  test  as  between  the  two  is  that,  as  long  as  the 
termini  remain  the  same,  and  the  master,  on  leaving,  intends 
to  go  to  the  terminus  named,  and  then  goes  out  of  his  way, 
or  is  guilty  of  an  unreasonable  delay,  it  is  a  deviation ; 
but,  if  the  terminus  is  changed,  then  it  is  a  change  of  voy- 
age. 

This  is  well  illustrated  by  the  case  of  Marine  Ins.  Co.  of 
Alexandria  v.  Tucker.7  There,  a  vessel  was  insured  at  and 
from   Kingston,  Jamaica,  to  Alexandria.     The  captain,  at 

e  1  Spr.  141,  Fed.  Cas.  No.  3,39a 
i  3  Craneh,  357,  2  L.  Ed.  4GG. 


§    29)  CONDITIONS    IN    CONTRACTS    OF    INSURANCE.  63 

Kingston,  took  on  a  cargo  for  Baltimore,  intending  to  go  to 
Baltimore,  and  then  to  Alexandria.  His  ship  was  captured 
before  reaching  the  Capes.  The  court  held  that  this  was 
merely  an  intended  deviation,  as  the  actual  deviation  would 
not  have  commenced  until  he  had  gone  inside  of  the  Capes 
to  the  parting  of  the  ways  for  the  two  ports,  and  that,  as 
no  man  could  be  punished  for  a  mere  intention,  the  under- 
writers were  liable.  In  such  case,  had  he  intended  to  go  to 
Baltimore  alone,  and  not  to  Alexandria  (the  terminus  named 
in  the  policy)  at  all,  it  would  have  been  a  change  of  voy- 
age, and  his  policy  would  have  been  void  at  once. 


SAME— ILLEGAL  TRAFFIC. 

29.  It  is  an   implied   condition  that  a  vessel  shall 
not  engage  in  illegal  trade. 

This  is  but  another  phase  of  the  principle  that  a  contract 
tainted  with  illegality  is  void.  Hence  any  trade  which  con- 
templates dealing  with  an  alien  enemy,  or  a  violation  of 
the  revenue  laws  of  the  country  whose  law  governs  the 
policy,  renders  the  contract  void. 

Care  must  be  taken,  in  considering  this  question,  to  re- 
member the  difference  between  the  effect  of  illegal  trade 
known  to  the  parties  and  its  effect  when  unknown.  Even 
when  equally  known  to  both  parties,  the  contract  is  void, 
because  the  court  will  not  lend  its  aid  to  enforce  such  con- 
tracts. On  the  other  hand,  such  a  voyage  known  to  one 
party  and  unknown  to  the  other  is  void  on  an  entirely  dif- 
ferent principle,  namely,  that  the  failure  of  the  insured  to 
give  the  underwriter  information  of  the  character  of  the 
trade  avoids  the  policy  on  the  ground  heretofore  discussed 
of  misrepresentation  or  concealment. 

An  interesting  case  on  this  subject  is  the  decision  of  Mr. 
Justice  Story  in  the  case  of  ANDREWS  v.  ESSEX  FIRE 


64  GENERAL    AVERAGE    AND    MARINE   INSURANCE.        (Ch.   3 

&  MARINE  INS.  CO.1  There  insurance  had  been  effected 
on  the  cargo  to  proceed  to  Kingston,  Jamaica.  It  was 
known  to  both  parties  that  the  British  government  forbade 
American  vessels  carrying  such  cargoes  there,  but  both 
parties  thought  that  the  prohibition  might  be  removed  by 
the  time  the  vessel  landed.  The  court  held  that  the  knowl- 
edge of  the  underwriters  that  the  trade  was  illicit  did  not 
make  them  assume  that  risk,  and  that  it  was  a  risk  not  cov- 
ered by  the  policy. 

In  the  case  of  Clark  v.  Protection  Ins.  Co.,2  which  also 
was  a  decision  of  Mr.  Justice  Story,  another  party  com- 
templated  no  illegality  during  the  voyage,  but  when  the 
ship  arrived  at  the  port  of  New  Orleans  the  master  took  on 
board  a  chain  cable,  which  had  been  bought  at  his  request 
in  Nova  Scotia,  brought  there  on  another  ship,  and  smug- 
gled on  board  his  vessel.  After  this  she  sailed  from  the 
port  of  New  Orleans,  and  was  lost.  The  underwriters  con- 
tended that  this  act  vitiated  the  entire  insurance.  The  court 
held,  however,  that,  as  the  insurance  was  originally  valid, 
any  subsequent  illegality  in  the  voyage  did  not  affect  the 
insurance  as  to  property  not  tainted  with  the  illegality,  al- 
though no  recovery  could  be  had  for  the  special  property 
which  was  so  tainted. 

In  the  case  of  Craig  v.  Insurance  Co.,3  an  American  during 
the  war  between  the  United  States  and  England  took  out 
a  British  license.  Mr.  Justice  Washington  held  that,  as  this 
was  an  illegal  voyage  throughout,  there  could  be  no  remedy 
upon  an  insurance  policy  covering  it. 

The  case  of  Calbreath  v.  Gracy  *  involved  a  somewhat 
similar  question,  though  the  warranty  in  that  case  was  ex- 
press, and  not  implied.    The  warranty  was  of  neutrality,  the 

g  29.     13  Mason,  6,  Fed.  Cas.  No.  374. 
2  1  Story,  109,  Fed.  Cas.  No.  2.832. 
s  Fed.  Cas.  No.  3,340,  Pet.  C.  C.  410. 

*  1  Wash.  C.  C.  219,  Fed.  Cas.  No.  2,296.  See,  also,  Schwartz  v. 
Insurance  Co.,  3  Wash.  C.  C.  117,  Fed.  Cas.  No.  12,504. 


§    29)  CONDITIONS    IN    CONTRACTS    OF    INSURANCE.  65 

vessel  and  cargo  being  warranted  as  American,  but  during 
the  voyage  she  was  documented  as  Spanish,  and  while  so 
documented  was  captured  by  a  foreign  privateer,  and  after- 
wards recaptured  by  a  British  privateer.  The  court  held 
that  the  warranty  that  the  vessel  was  American  implied  a 
warranty  that  there  should  be  the  necessary  documents  to 
show  it,  and  that  the  act  of  the  insured  in  having  their  vessel 
documented  as  Spanish  defeated  their  right  of  recovery. 

Violation  of  Revenue  Laws  of  Another  Country. 

It  is  a  well-settled  principle  of  English  law  that  the  Eng- 
lish courts  pay  no  attention  to  the  revenue  laws  of  another 
country;  and  therefore  it  is  not  illegal  per  se  to  endeavor 
to  smuggle  goods  into  another  country.  Of  course,  in  an 
insurance  policy,  as  such  an  act  would  increase  the  risk,  fail- 
ure to  tell  the  underwriter,  at  the  time  of  effecting  the  insur- 
ance, that  it  was  contemplated,  would  be  a  concealment, 
and  avoid  the  policy  on  that  ground.  But,  if  both  the  un- 
derwriter and  insured  knew  that  such  action  was  contem- 
plated, the  policy  would  be  valid,  and  the  underwriter  would 
be  held  liable,  although  under  exactly  similar  circumstances 
an  attempt  to  smuggle  into  England  would  be  an  illegal  con- 
tract, and  avoid  the  policy. 

Mr.  Parsons,  in  his  work  on  marine  insurance,5  states  this 
as  a  general  principle  of  insurance  law,  equally  applying  to 
this  country,  and  cites  some  American  decisions  to  sustain 
him.  One  of  these  is  the  decision  of  Mr.  Justice  Story  in 
the  case  of  Andrews  v.  Essex  Fire  &  Marine  Ins.  Co.,  above 
referred  to ;  and  certainly  in  that  opinion  the  justice  seems 
to  assume  that  the  underwriters  would  be  bound  if  they 
knew  that  illegal  trade  with  a  port  of  a  foreign  country  was 
contemplated.  The  decision  cannot  be  considered  as  abso- 
lutely in  point,  as  the  underwriters  were  held  not  liable  on 
another  ground. 

This  lax  view  of  the  international  relations  of  one  coun- 

•  1  Pars.  Mar.  Ins.  p.  34. 

IIUGHES.AD.— 5 


66  GENERAL    AVERAGE    AND    MARINE    INSURANCE.         (Ch.  3 

try  with  another  may  be  law  in  America  as  far  as  circuit 
court  decisions  and  the  decisions  of  state  courts  can  make 
it  so.  The  author,  however,  can  but  hope  that,  if  the  ques- 
tion is  ever  finally  presented  to  the  supreme  court  of  the 
United  States, — especially  at  this  period,  when  such  great 
advance  has  been  made  in  international  ethics, — that  court 
will  decide  it  the  other  way. 

In  the  case  of  Oscanyan  v.  Winchester  Arms  Co.,6  a 
Turkish  consul  living  in  this  country  made  a  contract  with 
the  Winchester  Arms  Company  by  which  he  was  to  receive 
a  commission  on  all  the  arms  of  that  company  which  he 
influenced  his  government  to  buy.  When  he  sued  for  such 
commissions,  the  supreme  court  decided  that  the  contract 
was  void  as  against  public  policy,  and  not  enforceable.  It 
was  urged  upon  the  court  that,  while  such  contracts  were 
undoubtedly  void  under  our  law,  they  were  quite  the  proper 
thing  under  Turkish  law,  and  that  it  was  a  recognized  right 
of  Turkish  officials  to  serve  their  government  in  that  way. 
The  supreme  court,  however,  repudiated  the  argument,  and 
held  that  it  was  a  question  regarding  our  own  citizens,  and 
that,  if  such  transactions  might  have  the  effect  of  demoral- 
izing them,  it  would  not  enforce  any  rights  based  upon  them. 
This  decision,  though  not  exactly  in  point  on  the  question 
above  discussed,  would,  at  least,  indicate  a  possibility  that 
the  supreme  court  would  think  it  just  as  illegal  to  defraud 
a  foreign  government  by  smuggling  as  by  giving  commis- 
sions on  arms  purchased  for  it. 


THE  POLICY  AND  ITS  PROVISIONS  AS  TO  RISK 
AND  PERILS  INSURED  AGAINST. 

80.  The  written   contract  of  insurance  is  called  a 
"  policy." 

«  103  U.  S.  261,  26  L.  Ed.  539. 


§    30)  PROVISIONS    AS    TO    RISK    AND    PERILS.  67 

The  better  opinion  is  that  the  word  "policy"  is  from  the 
Latin  "polliceor," — "I  promise."  The  forms  of  policies  vary. 
The  most  common  is  the  English  form,  which  has  been  in 
use  for  a  long  time,  and  the  American  forms  in  use  in  Boston 
and  New  York.  ■  These  vary  materially  in  their  general  pro- 
visions, and,  of  course,  the  stipulations  in  them  are  varied 
to  suit  the  special  circumstances. 

The  English  form  will  be  found  in  Appendix  No.  I  of 
Park  on  Insurance.  It  has  been  frequently  criticised  by  the 
courts  as  ambiguous  and  inartificial,  but  its  various  provi- 
sions have  now  been  so  generally  construed  that  it  is  well 
understood. 

A  good  example  of  the  American  form  will  be  found  in 
the  case  of  SUN  MUT.  INS.  CO.  v.  OCEAN  INS.  CO.1 
This  was  a  reinsurance  policy  on  goods,  but  the  important 
clauses  commonly  in  use  will  be  found  embodied  in  it. 

Of  the  Beginning  and  End  of  the  Risk. 

The  clause  in  the  English  form  bearing  upon  this  is 
worded  as  follows  :  "Beginning  the  adventure  upon  the  said 
goods  and  merchandise  from  the  loading  thereof  aboard 
the  said  ship  *  *  *  upon  the  said  ship,"  etc.,  "and  so 
shall  continue  and  endure  during  her  abode  there,  upon  the 
said  ship,"  etc.  "And,  further,  until  the  said  ship,  with 
all   her   ordnance,  tackle,   apparel,"   etc.,   "and   goods  and 

merchandise  whatsoever  shall  be  arrived  at  upon 

the  said  ship,"  etc.,  "until  she  hath  moored  at  anchor  twenty- 
four  hours,  in  good  safety;  and  upon  the  goods  and  mer- 
chandises, until  the  same  be  there  discharged  and  safely 
landed." 

The  American  policy  above  referred  to  expresses  all  this 
much  more  simply,  as  follows :  "Beginning  the  adventure 
upon  the  said  goods  and  merchandise  from  and  immediately 
following  the  loading  thereof  on  board  of  the  said  vessel  at 
aforesaid,  and  so  shall  continue  and  endure  until  the 

§  30.     i  107  U.  S.  485,  1  Sup.  Ct.  582,  27  L.  Ed.  337. 


68  GENERAL   AVERAGE    AND    MARINE    INSURANCE.        (Ch.  3 


said  goods  and  merchandise  shall  be  safely  landed  at 

aforesaid." 

In  filling  up  the  blank  indicating  the  voyage,  the  initial 

point   is   frequently   described   as   "at   and   from to 

-."    The  meaning  of  these  words  varies  according  to 

circumstances.  They  cover  injuries  received  in  the  initial 
port  in  the  ordinary  course  of  preparing  for  the  voyage, 
provided  the  delay  is  not  unreasonable.  For  instance,  the 
case  of  THE  LISCARD  2  was  a  case  of  insurance  on  a 
cargo  of  wheat  "at  and  from  New  York,"  and  bound  for 
Lisbon.  After  the  loading  of  the  vessel,  the  signing  of  her 
bills  of  lading,  and  other  preparations  to  leave  port,  the 
vessel  cast  off  her  lines  for  the  purpose  of  starting,  but,  on 
account  of  some  trifling  derangement  of  her  engines,  again 
made  fast  to  her  wharf.  While  lying  there  she  was  run 
into  by  a  barge.  She  was  surveyed,  pronounced  seaworthy, 
and  started,  meeting  very  heavy  weather,  which  caused 
water  to  damage  the  wheat.  The  court  held  that  the  policy 
had  attached  at  the  time  of  this  collision. 

In  the  case  of  Haughton  v.  Empire  Marine  Ins.  Co.,& 
a  vessel  while  at  sea  was  insured  "lost  or  not  lost,  at  and 
from  Havana  to  Greenock."  In  entering  the  harbor  of 
Havana  she  grounded,  and  received  damage.  The  court 
held  that  under  such  circumstances  the  words  were  used  in 
a  geographical  sense,  the  ship  being  in  the  geographical 
limits  of  the  harbor  of  Havana  in  the  sense  of  the  policy, 
and  that,  therefore,  the  policy  had  attached.  In  this  case 
the  injury  was  received  from  the  anchor  of  another  ship  in 
the  harbor  after  her  arrival  within  its  limits. 

The  case  of  Seamans  v.  Eoring  4  was  a  decision  of  Mr. 
Justice  Story.     In  reference  to  the  meaning  of  these  words 

s  (D.  C.)  56  Fed.  44;  London  Assurance  v.  Corapanhia  De  Moagens 
Do  Barreiro,  15  0.  C.  A.  379,  68  Fed.  247;  Id.,  167  U.  S.  149,  17  Sup. 
Ct.  785,  42  L.  Ed.  113. 

a  L.  11.  1  Exch.  206. 

4  1  Mason,  127,  Fed.  Cas.  No.  12.5S3. 


§    30)  PROVISIONS    AS    TO    RISK    AND    PERILS.  69 

he  says :  "The  next  question  is,  at  what  time,  if  ever,  did 
the  policy  attach  ?  The  insurance  is  'at  and  from,'  etc.  What 
is  the  true  construction  of  these  words  in  policies  must,  in 
some  measure,  depend  upon  the  state  of  things  and  the 
situation  of  the  parties  at  the  time  of  underwriting  the 
policy.  If  at  that  time  the  vessel  is  abroad  in  a  foreign  port, 
or  expected  to  arrive  at  such  port  in  the  course  of  the 
voyage,  the  policy,  by  the  word  'at,'  will  attach  upon  the 
vessel  and  cargo  from  the  time  of  her  arrival  at  such  port. 
If,  on  the  other  hand,  the  vessel  has  been  at  no  time  in  such 
port  without  reference  to  any  particular  voyage,  the  policy 
will  attach  only  from  the  time  that  preparations  are  begun 
to  be  made  with  reference  to  the  voyage  insured."  In  this 
case  there  was  an  unreasonable  delay  in  sailing,  and  he  in- 
structed the  jury  that  such  an  unreasonable  and  unneces- 
sary delay  prevented  the  policy  from  attaching  during  this 
preparation,  and  that  the  policy  did  not  attach  until  the  ves- 
sel began  her  preparations  for  the  voyage  insured. 

As  to  the  question  when  the  voyage  terminates,  the  courts 
have  held  that  it  lasts,  under  the  language  of  the  policy,  until 
she  has  been  moored  twenty-four  hours  in  good  safety,  and 
that  a  vessel  which  arrives  as  a  wreck  incapable  of  repair, 
and  is  lost  in  the  port  of  final  destination  under  such  circum- 
stances, even  after  being  moored,  has  never  arrived  "in  good 
safety,"  in  the  meaning  of  this  clause,  and  that,  therefore, 
the  underwriters  are  liable.8 

An  interesting  case  on  the  meaning  of  these  words  "in 
good  safety"  is  that  of  LIDGETT  v.  SECRETAN.6  There 
the  ship  Charlemagne,  insured  from  London  to  Calcutta, 
with  this  clause  in  the  policy,  sustained  considerable  damage 
at  sea,  so  as  to  require  constant  pumping,  but  still  not  so 
serious  as  to  make  her  an  absolute  wreck.  She  arrived  at 
Calcutta  in  this  condition  on  October  28,  1866.    After  un- 

0  Shawe  v.  Felton,  2  East,  109. 
•  L.  R.  5  C.  P.  100. 


70  GENERAL    AVERAGE    AND    MARINE   INSURANCE.         (Ch.    3 

loading  she  was  taken  on  November  12th  to  a  dry  dock  for 
survey  and  repairs,  and  was  destroyed  by  accidental  fire  on 
December  5th.  The  court  held  that,  as  she  had  arrived,  and 
been  moored  for  twenty-four  hours  in  good  safety  as  a  ship, 
and  not  as  a  mere  wreck,  the  risk  had  terminated,  and  the 
underwriters  were  liable  for  the  loss  incurred  before  enter- 
ing the  port,  but  not  for  the  fire  which  had  happened  after 
such  anchoring. 

The  anchoring  must  be  at  the  place  of  final  discharge. 
Coming  to  anchor  in  port  with  the  intention  of  entering  the 
dock  afterwards  is  not  a  final  mooring  in  the  sense  of  this 
clause.7 

The  Perils  Insured  against. 

The  ordinary  language  in  an  English  policy  enumerating 
the  perils  is  as  follows :  "Touching  the  adventures  and 
perils  which  we,  the  assurers,  are  content  to  bear,  and  do 
take  upon  us  in  this  voyage,  they  are  of  the  seas,  men-of- 
war,  fire,  enemies,  pirates,  rovers,  thieves,  jettisons,  letters 
of  mart  and  countermart,  reprisals,  takings  at  sea,  arrests, 
restraints,  and  detainments  of  all  kings,  princes,  and  people 
of  what  nation,  quality,  or  condition  soever,  barratry  of  the 
masters  and  mariners,  and  all  other  perils,  losses,  or  mis- 
fortunes that  have  or  shall  come  to  the  hurt,  detriment,  or 
damage  of  the  said  goods  and  merchandises  and  ship." 

SAME— PERILS  OF  THE  SEAS. 

81.  "Perils  of  the  seas"  mean  all  losses  or  dam- 
age -which  arise  from  the  extraordinary- 
action  of  the  -wind  and  sea,  or  from  extraor- 
dinary causes  external  to  the  ship,  and  orig- 
inating on  navigable  -waters. 

The  phrase  does  not  cover  ordinary  wear  and  tear,  nor 
does  it  cover  rough  weather  or  cross  seas.     There  must  be 

1  Samuel  v.  Assurance  Co.,  8  Barn.  &  C.  (15  E.  C.  L.  66)  119. 


§    31)  PROVISIONS    AS    TO    RISK    AND    PERILS.  71 

something  extraordinary  connected  with  it.1  Under  this 
principle  the  supreme  court  has  held  that  injury  to  a  vessel 
from  worms  in  the  Pacific,  if  an  ordinary  occurrence  in  that 
locality,  is  not  included  in  the  phrase.2 

On  the  other  hand,  injuries  received  from  accidentally 
striking  the  river  bank  in  landing,  in  consequence  of  which 
the  vessel  sank,  are  included  in  the  term.8 

It  also  covers  a  loss  caused  by  a  jettison  of  part  of  the 
cargo.4 

In  the  case  of  Potter  v.  Suffolk  Ins.  Co.,"  Justice  Story 
held  that  injury  caused  to  a  ship  by  striking  on  some  hard 
substance  in  the  harbor,  due  to  the  ebbing  of  the  tide,  is  a 
loss  by  a  peril  of  the  sea,  unless  it  was  mere  wear  and  tear, 
or  unless  it  was  an  ordinary  and  natural  occurrence.  Inju- 
ries caused  from  the  negligence  of  the  master  or  crew  are 
also  covered,  unless,  of  course,  there  is  an  express  stipula- 
tion against  them, — as  is  not  uncommon.8 

In  policies  which  contain  an  exception  protecting  the  in- 
surer from  injuries  caused  by  lack  of  ordinary  care  and  skill 
of  the  navigators,  it  is  the  tendency  of  the  courts  to  con- 
strue this  phrase  strictly  against  the  insurer.  They  con- 
strue it  in  such  cases  to  apply  rather  to  the  general  qual- 
ifications of  the  crew  than  to  their  carelessness  in  particular 
instances.7 

The  courts  also  hold  that  injuries  received  by  collision 
with  another  vessel  are  covered,  though  not  injuries  inflict- 
ed.    This  question  is  discussed  in  the  case  of  GENERAL 

f  31.     *  The  Gulnare  (C.  O.)  42  Fed.  861. 
2  Hazard  v.  Insurance  Co.,  8  Pet.  557,  8  L.  Ed.  1043. 
*  Seaman  v.  Insurance  Co.  (C.  C.)  21  Fed.  778. 
«  Lawrence  v.  Minturn,  17  How.  100,  15  L.  Ed.  58. 
e  2  Sumn.  197,  Fed.  Cas.  No.  11,339. 

«  Rogers  v.  Insurance  Co.,  35  C.  C.  A.  396,  95  Fed.  103;    Orient 
Ins.  Co.  v.  Adams,  123  U.  S.  67,  8  Sup.  Ct.  68,  31  L.  Ed.  63. 
I  Egbert  v.  Insurance  Co.  (D.  C.)  71  Fed.  739. 


72  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   O 

MUT.  INS.  CO.  v.  SHERWOOD,8  in  which  the  opinion 
was  rendered  by  Justice  Curtis. 

In  the  case  of  Peters  v.  Warren  Ins.  Co.,9  the  court  held 
that  under  the  term  "perils  of  the  sea"  the  insured  could 
recover  not  only  the  damage  received  by  his  vessel,  but  the 
amount  that  he  had  to  pay  in  general  average,  under  the 
provisions  of  the  German  law,  to  the  other  vessel.  As  to 
the  latter  part  of  this  decision,  however,  it  turned  upon  the 
peculiar  provisions  of  the  German  law  of  average,  making 
the  vessel  liable  in  such  case  even  without  fault.  But  it  was 
not  intended  by  the  supreme  court  in  that  case  to  decide  the 
general  proposition  that  the  above  term  quoted  in  the  pol- 
icy gave  the  right  to  recover  for  injuries  inflicted.  In  this 
respect  the  law  of  England  is  the  same  as  that  of  America.10 

The  clause  covers  fire  caused  by  negligence  of  the  crew, 
the  proximate  cause  in  that  case  being  taken  to  be  the  fire ; 
but,  if  the  fire  was  caused  not  by  the  mere  negligence,  but 
by  design,  then  the  proximate  cause  would  not  be  the  fire, 
but  the  design,  and  the  underwriter  would  be  liable  if  his 
policy  covered  barratry,  but  not  if  otherwise.11 

SAME— BARRATRY. 

32.  Barratry  is  an  act  committed  by  the  master  or 
mariners  of  the  ship  for  some  unlawful  or 
fraudulent  purpose,  contrary  to  their  duty 
to  their  owners,  whereby  the  latter  sustain 
an  injury. 

The  above  is  the  definition  given  by  Justice  Story  in  the 
case  of  Marcardier  v.  Chesapeake  Ins.  Co.1 

» 14  How.  357,  14  L.  Ed.  452. 

•  14  Pet.  99,  10  L.  Ed.  371. 

io  De  Vaux  v.  Salvador,  4  Adol.  &  E.  (31  E.  C.  L.  195)  420. 

ii  Waters  v.  Insurance  Oo.,  11  Pet.  213,  9  L.  Ed.  69. 

§32.     18  Cranch,  39,  3  L.  Ed.  4S1. 


§    33)  PROVISIONS    AS   TO    RISK    AND    PERILS.  73 

The  courts  have  found  great  difficulty  in  giving  any  sat- 
isfactory definition  of  this  act.  The  meaning  of  the  term  is 
discussed  at  great  length  and  learnedly  in  the  case  of  PA- 
TAPSCO  INS.  CO.  v.  COULTER.2  It  seems  to  exclude 
the  idea  of  mere  negligence,  to  involve  at  least  some  ele- 
ment of  design  or  intention  or  negligence  so  gross  as  to  be 
evidence  of  such  design  or  intention.  In  that  case  the  final 
decision  was  that,  where  the  loss  was  caused  by  a  fire,  and 
it  appeared  that  the  master  and  crew  did  not  take  proper 
steps  to  extinguish  the  fire,  the  cause  of  loss  was  the  fire, 
and  not  the  negligence  of  the  crew,  and  therefore  they  held 
the  insurer  liable. 

In  the  more  recent  case  of  New  Orleans  Ins.  Co.  v.  Albro 
Co.,3  a  voyage  had  been  broken  up,  and  the  cargo  sold.  It 
was  charged  that  the  master  made  the  sale  in  a  method 
knowingly  contrary  to  his  best  judgment,  and  to  the  injury 
of  the  parties  interested.  The  court  held  that  this,  if  so, 
would  constitute  barratry. 

As  barratry  is  something  done  to  the  prejudice  of  the 
owners,  it  follows  that  the  master  who  is  sole  owner  can- 
not commit  barratry,  as  a  man  can  hardly  cheat  himself; 
but,  if  he  is  part  owner,  he  can  be  guilty  of  barratry  towards 
his  other  owners.4 

SAME— THEFTS. 

33.  Thefts  in  a  marine  policy,  according  to  the 
better  opinion,  cover  thefts  from  without  the 
ship,  and  do  not  cover  thefts  by  the  crew. 

This  is  the  decision  according  to  the  great  preponderance 
of  English  authority.1     Parsons,  in  his  Marine  Insurance, 

»  3  Pet.  222,  7  L.  Ed.  659. 

•  112  U.  S.  506,  5  Sup.  Ct  289,  28  L.  Ed.  809. 

*  Marcardler  v.  Insurance  Co.,  8  Cranch,  39,  3  L.  Ed.  481;  Jones  v. 
Nlcbolson,  10  Exch.  28. 

§  33.     i  Taylor  v.  Steamship  Co.,  L.  R.  9  Q.  B.  546. 


74  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.    3 

states  that  the  weight  of  American  authority  would  make 
the  insurers  liable  for  larceny  by  the  crew.2  His  citations, 
however,  hardly  seem  strong  enough  to  check  the  reason- 
ing of  the  English  cases. 

SAME— ALL  OTHER  PERILS. 

34.  "All  other  perils,"  etc.,   mean  all  other  perils 
of  the  same  general  character. 

These  words,  according  to  the  construction  placed  upon 
them  by  the  courts  under  the  rule  of  ejusdem  generis,  are 
intended  as  a  general  safeguard  to  cover  losses  similar  to 
those  guarded  against  by  the  special  enumeration,  and  not 
in  as  sweeping  a  sense  as  the  mere  language  would  mean. 

The  leading  case  as  to  the  meaning  of  these  words  is 
THAMES  &  M.  MARINE  INS.  CO.  v.  HAMILTON,1 
wherein  Lord  Bramwell,  in  his  opinion,  in  reference  to  the 
meaning  of  these  words,  uses  the  following  language:  "Def- 
initions are  most  difficult,  but  Lord  Ellenborough's  seems 
right :  'All  cases  of  marine  damage  of  the  like  kind  with 
those  specially  enumerated,  and  occasioned  by  similar  caus- 
es.' I  have  had  given  to  me  the  following  definition  or  de- 
scription of  what  would  be  included  in  the  general  words : 
'Every  accidental  circumstance  not  the  result  of  ordinary  wear 
and  tear,  delay,  or  of  the  act  of  the  assured,  happening  in  the 
course  of  the  navigation  of  the  ship,  and  incidental  to  the  nav- 
igation, and  causing  loss  to  the  subject-matter  of  insurance.' 
Probably  a  severe  criticism  might  detect  some  faults  in  this. 
There  are  few  definitions  in  which  that  could  not  be  done.  I 
think  the  definition  of  Lopes,  L.  J.,  in  Pandorf  v.  Hamilton 
[16  Q.  B.  Div.  629],  very  good :  'In  a  seaworthy  ship,  dam- 
age of  goods  caused  by  the  action  of  the  sea  during  transit, 
not  attributable  to  the  fault  of  anybody,'  is  a  damage  from  a 

2  1  Pars.  Mar.  Ins.  563-5G6,  and  notes. 
§  34.     1  12  App.  Cas.  4S4. 


§    35)  PROXIMATE    CAUSE    OF    LOSS.  75 

peril  of  the  sea.  I  have  thought  that  the  following. might 
suffice :  'All  perils,  losses,  and  misfortunes  of  a  marine 
character,  or  of  a  character  incident  to  a  ship  as  such.' ': 
And  Lord  Herschell,  in  his  opinion,  discusses  the  cases  which 
had  previously  passed  upon  them.  The  case  was  an  insur- 
ance under  a  time  policy,  in  which,  under  English  law,  as 
previously  stated,  there  is  no  implied  warranty.  The  don- 
key engine  was  being  used  pumping  water  into  the  main 
boilers,  but,  owing  to  the  fact  that  a  valve  was  closed  which 
ought  to  have  been  left  open,  the  water  was  forced  into  and 
split  open  the  air  chamber  of  the  donkey  pump.  The  court 
held  that,  whether  the  closing  of  the  valve  was  accidental 
or  due  to  the  negligence  of  the  engineer,  it  was  not  such  an 
accident  as  was  covered  either  by  the  words  "perils  of  the 
sea,"  or  by  the  general  saving  clause  above  quoted. 

PROXIMATE  CAUSE  OF  LOSS. 

86.  Where  an  injury  is  due  to  more  than  one 
cause,  the  last  efficient  cause  in  the  chain  of 
causation  is  assumed  to  be  the  cause  of  the 
loss,  under  the  maxim  that  the  proximate, 
and  not  the  remote,  cause  should  be  consid- 
ered. 

The  question  what  is  the  proximate  and  what  the  remote 
cause  gives  rise  to  some  of  the  most  difficult  points  in  ma- 
rine insurance  law.  The  only  general  rule  is  that  laid  down 
above,  and,  like  most  general  rules,  its  difficulties  lie  in  its 
application.  A  few  examples  may  illustrate  the  subject 
more  clearly. 

In  the  case. of  IONIDES  v.  UNIVERSAL  MARINE 
INS.  CO.,1  a  vessel  loaded  with  coffee  was  insured  under 
the  ordinary  policy,  which  contained  a  warranty  "free  from 
all   consequences   of  hostilities."     It  was    during  the   Civil 

§  35.     i  14  C.  B.  N.  S.  (108  E.  C.  L.)  2o9. 


76  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.   3 

War,  and  the  Confederates  had  extinguished  Hatteras  Light 
as  a  means  of  embarrassing  the  navigation  of  the  Federal 
ships.  The  captain,  on  his  way  from  New  Orleans  to  New 
York,  supposing  that  he  had  passed  Cape  Hatteras,  when  he 
had  not,  changed  his  course  in  such  a  way  that  his  vessel 
went  ashore.  The  Confederate  authorities  took  him  and 
his  crew  as  prisoners.  Federal  salvors  came  down,  and 
saved  part  of  the  coffee,  and  might  have  saved  more  but  for 
the  interference  of  Confederate  troops.  In  a  day  or  two  the 
vessel  was  lost.  The  court  held,  under  these  circumstances, 
that,  as  to  that  part  of  the  coffee  which  remained  aboard,  it 
was  lost  by  a  peril  of  the  sea,  that  being  the  proximate 
cause,  and  not  the  act  of  the  Confederates  in  extinguishing 
the  light ;  but  that  as  to  the  cargo  which  was  saved,  and  as 
to  that  part  which  could  have  been  saved  but  for  the  inter- 
ference of  the  Confederate  authorities,  the  proximate  cause 
was  the  consequence  of  hostilities,  and  that  as  to  that  part 
the  underwriters  were  not  liable. 

In  the  case  of  Mercantile  S.  S.  Co.  v.  Tyser,2  the  insur- 
ance was  on  freight  during  a  certain  voyage.  The  charter 
party  contained  a  clause  that  the  charterers  might  cancel 
the  charter  party  if  the  vessel  did  not  arrive  by  the  ist  of 
September.  The  ship  started  from  England  on  the  7th  of 
August,  but  her  machinery  broke  down,  and  she  had  to  put 
back.  The  time  lost  caused  her  to  arrive  in  New  York  after 
the  ist  of  September,  and  the  charterers  canceled  the  char- 
ter party.  The  court  held  that  the  proximate  cause  of  the 
loss  of  freight  was  not  the  breaking  down  of  the  machinery, 
but  the  option  exercised  by  the  charterers  of  canceling  the 
charter  party,  and  that,  therefore,  the  underwriters  were  not 
liable. 

In  the  case  of  Dole  v.  New  England  Mut.  Marine  Ins. 
Co.,8  a  vessel  was  captured  by  the  Confederate  cruiser  Sum- 

17Q.B.  Div.  73. 

•  2  Cliff.  394,  Fed.  Cas.  No.  3,966. 


§    35)  PROXIMATE    CAUSE    OF    LOSS.  77 

ter.  As  she  could  not  be  brought  into  any  port  of  condem- 
nation, her  captors  set  her  on  fire  and  destroyed  her.  The 
policy  contained  a  clause  warranted  free  from  capture.  It 
was  argued,  inter  alia,  that  the  proximate  cause  of  the  loss 
was  the  fire,  and  not  the  capture.  Justice  Clifford  held, 
however,  that  the  proximate  cause  was  the  capture  and  the 
acts  of  the  captors,  and  that  the  underwriters  were  not  liable. 

The  case  of  HOWARD  FIRE  INS.  CO.  v.  NORWICH 
&  N.  Y.  TRANSP.  CO.4  arose  under  a  fire  insurance  policy. 
The  steamer  Norwich  collided  with  a  schooner,  injuring  her 
own  hull  below  the  water  line.  She  rapidly  began  to  fill, 
and  10  or  15  minutes  after  the  collision  the  water  reached  the 
fire  of  the  furnace,  and  the  steam  thereby  caused  blew  the  fire 
around,  and  set  fire  to  the  woodwork  of  the  boat.  In  con- 
sequence, she  burned  until  she  sank  in  deep  water.  The  in- 
jury from  the  collision  alone  would  not  have  made  her  sink. 
The  court  held  that  the  fire  was  the  efficient  predominating 
cause  nearest  in  time  to  the  catastrophe,  and  that  the  under- 
writers were  liable  for  that  part  of  the  injury  which  was 
caused  by  the  fire. 

In  the  case  of  Orient  Mut.  Ins.  Co.  v.  Adams,0  the  master 
of  the  steamer  Alice,  lying  above  the  falls  of  the  Ohio  near 
Louisville,  gave  the  signal  to  cast  the  boat  loose,  and  started 
when  she  did  not  have  steam  enough  to  manage  her.  There 
was  no  clause  in  the  policy  exempting  the  insurers  from  lia- 
bility for  the  negligence  of  the  master  or  crew.  The  vessel 
was  carried  over  the  falls,  and  the  court  held  that  the  prox- 
imate cause  was  the  damage  done  by  going  over  the  falls, 
which  was  a  peril  of  navigation,  and  not  the  act  of  the  mas- 
ter, that  being  a  remote  cause. 

A  like  application  of  the  rule  of  causa  proxima  is  made  to 
the  sale  of  cargo  in  an  intermediate  port  of  distress  to  raise 
funds.     Such  a  loss  is  not  recoverable  under  the  policy,  as 

«  12  Wall.  194,  20  L.  Ed.  373. 

»  123  U.  S.  67,  8  Sup.  Ct.  68,  31  L.  Ed.  63. 


78  GENERAL    AVERAGE    AND    MARINE    INSURANCE.         (Chi  3 

the  sea  peril  that  caused  the  vessel  to  enter  the  port  of  dis- 
tress is  deemed  a  remote  cause.6 


THE  LOSS— TOTAL  OR  PARTIAL. 

36.  A  loss  may  be  total  or  partial. 

37.  ACTUAL  OR  CONSTRUCTIVE— 

A  total  loss  may  be  actual  or  constructive. 

(a)  There  is  an  actual  total  loss  where  the  subject- 

matter  is  •wholly  destroyed  or  lost  to  the 
insured,  or  -where  there  remains  nothing  of 
value  to  be  abandoned  to  the  insurer. 

(b)  There  is  a  constructive  total  loss  when  the 

insured  has  the  right  to  abandon. 

Actual  Total  Loss  of  Vessel. 

An  actual  total  loss  of  a  ship  occurs  when  the  vessel  is  so 
injured  that  she  no  longer  exists  in  specie  as  a  ship.  If  she 
still  retains  the  form  of  a  ship,  and  is  susceptible  of  repair, 
it  is  not  an  actual  total  loss. 

In  the  case  of  BARKER  v.  JANSON,1  Wills,  J.,  says : 
"If  a  ship  is  so  injured  that  it  cannot  sail  without  repairs, 
and  cannot  be  taken  to  a  port  at  which  the  necessary  re- 
pairs can  be  executed,  there  is  an  actual  total  loss,  for  that 
has  ceased  to  be  a  ship  which  never  can  be  used  for  the  pur- 
pose of  a  ship ;  but  if  it  can  be  taken  to  a  port  and  repaired, 
though  at  an  expense  far  exceeding  its  value,  it  has  not 
ceased  to  be  a  ship." 

In  the  case  of  Delaware  Mut.  Safety  Ins.  Co.  v.  Gossler,2 
Clifford,  J.,  uses  substantially  the  same  language. 

6  Powell  v.  Gudgeon,  5  Maule  &  S.  431;  Ruckman  v.  Insurance  Oo., 
5  Duer  (X.  Y.)  371. 

§§  36-37.     i  L.  R.  3  C.  P.  303. 
2  96  U.  S.  645,  24  L.  Ed.  863. 


§§  36-37)  the  loss.  79 

Actual  Total  Loss  of  Goods. 

There  is  a  total  loss  of  goods  not  only  when  they  are  ab- 
solutely destroyed,  but  when  they  are  in  such  a  state  that 
they  cannot  be  carried  in  specie  to  the  port  of  destination 
without  danger  to  the  health  of  the  crew,  or  when  they  are 
in  such  a  state  of  putrefaction  that  they  have  to  be  thrown 
overboard  from  fear  of  disease.3 

Interesting  questions  often  arise  when  there  is  an  insur- 
ance against  total  loss  only  on  goods  and  part  of  the  goods 
are  lost.  If  the  goods  are  all  of  the  same  kind,  and  a  part 
of  them  are  lost,  then,  under  the  ordinary  language  of  the 
policy,  the  loss  would  be  partial  only.  But,  if  there  were 
different  kinds  of  goods  insured  under  one  policy,  the  courts 
hold,  unless  the  language  of  the  policy  is  specially  worded 
to  exclude  it,  that  there  is  a  total  loss  of  separate  articles, 
even  though  there  may  not  be  a  total  loss  of  the  whole. 

This  question  is  discussed  in  the  case  of  Woodside  v.  Can- 
ton Ins.  Office.4  That  was  an  insurance  against  total  loss 
only,  or,  what  has  been  held  to  mean  about  the  same  thing, 
"warranted  free  from  all  average,"  on  personal  effects  of  the 
master  of  the  vessel.  The  personal  effects  consisted  of  a 
variety  of  different  articles.  The  vessel  was  lost,  and  so 
were  all  the  master's  effects,  except  a  sextant  and  a  few 
small  articles.  The  court  held  that  there  was  a  total  loss  of 
the  different  articles  which  were  not  saved,  although  some 
of  the  personal  effects  were  saved. 

On  the  other  hand,  in  Biays  v.  Chesapeake  Ins.  Co.,8  the 
insurance  was  on  a  cargo  of  hides.  Some  of  the  hides  were 
entirely  lost.  The  court  held,  however,  that  as  the  insur- 
ance covered  only  one  article,  namely,  hides,  this  was  a  par- 
tial loss  on  the  entire  subject  of  insurance,  and  not  a  total 
loss  of  some  of  the  different  subjects  of  insurance. 

»  Hugg  v.  Insurance  Co.,  7  How.  505,  12  L.  Ed.  834. 
4  (D.  C.)  84  Fed.  283;   Id.,  33  C.  C.  A.  03,  90  Fed.  301. 
b  Washburn  &  M.  Mfg.  Co.  v.  Insurance  Co.,  170  U.  S.  1,  21  Sup. 
Ct.  1,  Vo  L.  Ed.  49;   7  Crandi,  415,  3  L.  Ed.  389. 


80  GENERAL    AVERAGE    AND    MARINE    INSURANCE.        (Ch.    3 

But  where  the  subject  insured  is  a  single  unit,  though 
composed  of  different  parts,  the  loss  of  one  of  those  parts, 
which  renders  the  others  absolutely  useless,  and  which  could 
not  be  replaced  at  an  expense  less  than  the  cost  of  the  en- 
tire unit,  makes  it  a  total  loss. 

In  the  case  of  Great  Western  Ins.  Co.  v.  Fogarty,6  there 
was  insurance  upon  a  sugar-packing  machine  composed  of 
various  different  units.  Some  of  these  parts  were  lost,  and 
could  not  have  been  replaced  for  less  than  the  price  of  a 
new  machine.  Some  were  saved,  but  were  only  valuable 
as  scrap  iron.  The  court  held  that  this  was  a  destruction 
of  the  machine  in  specie,  and  therefore  a  total  loss. 

Actual  Total  Loss  of  Freta? J. 

There  is  a  total  loss  of  ireight  whenever  there  is  a  total 
loss  of  cargo  or  when  the  voyage  is  broken  up  and  no 
freight  is  earned.  But  if  the  vessel  can  be  repaired  in  suffi- 
cient time  to  carry  her  cargo  without  frustrating  the  objects 
of  the  voyage  by  delay,  or  the  cargo  is  in  a  condition  to  be 
shipped  by  another  vessel  and  another  vessel  is  procurable, 
there  is  not  a  total  loss  of  freight.7 


SAME— ABANDONMENT. 

38.  Abandonment  is  the  surrender  by  the  insured, 
on  a  constructive  total  loss,  of  all  his  inter- 
est, to  the  insurer,  in  order  to  claim  the 
whole  insurance. 
(a)  Under  the  American  rule,  if  the  cost  of  sav- 
ing and  repairing  a  vessel  exceed  one-half 
her  value  -when  repaired,  the  owner,  by- 
giving  the  underwriter  notice  of  abandon- 

«  19  Wall.  640,  22  L.  Ed.  216. 

t  Hugg   v.   Insurance  Co.,   7  How.  595,   12  L.   Ed.  834;    Jordan 
T.  Insurance  Co.,  1  Story,  342,  Fed.  Cas.  No.  7,524. 


§   38)  THE    LOSS.  83 

ment,  may  surrender  his  vessel  to  the  un- 
derwriter, and  claim  for  a  total  loss, 
(b)  Under  the  English  rule,  he  can  do  the  same 
thing   if  the   ship  is  so   much  injured  that 
she  would  not  be  worth  the  cost  of  repair. 

This  is  the  most  striking  difference  between  the  American 
and  English  law  of  marine  insurance.  Under  the  American 
law,  as  stated  above,  the  right  of  abandonment  is  governed 
by  the  facts  as  they  appear  at  the  time  of  the  abandon- 
ment. If,  therefore,  at  that  time,  under  the  highest  degree 
of  probability,  the  cost  of  saving  and  repairing  the  vessel 
would  exceed  one-half  of  her  value  when  repaired,  the  in- 
sured may  abandon.1 

In  the  absence  of  special  stipulations,  the  cost  must  ex- 
ceed one-half  the  value  of  the  vessel  when  repaired  at  the 
place  of  disaster,  and  the  policy  value  of  the  vessel  or  her 
value  in  the  home  port  is  no  criterion. 

In  consequence  of  these  decisions,  it  has  become  common 
to  provide  in  the  policy  itself  that  the  right  of  abandonment 
shall  not  exist  unless  the  cost  of  repairs  exceeds  one-half  the 
agreed  valuation.  Such  a  stipulation  is,  of  course,  valid, 
but  there  also  the  right  of  abandonment  is  determined  by 
the  facts  as  they  exist  at  the  time,  and  is  not  devested  by 
the  fact  that  the  vessel  may  subsequently  be  saved  for  less.2 
The  case  of  Currie  v.  Bombay  Native  Ins.  Co.3  was  a  case  of 
insurance  on  cargo  and  disbursements.  The  vessel  was 
wrecked,  and  the  captain  made  no  effort  to  save  the  cargo. 
It  appeared  from  the  facts  that  the  cargo  could  at  least 
have  been  partially  saved  if  he  had.  The  ship  was  a  total 
wreck.    The  court  held  that  this  was  not  a  total  loss  of  the 

§  38.  i  Bradlie  v.  Insurance  Co.,  12  Pet.  378,  9  L.  Ed.  1123; 
Wallace  v.  Insurance  Co.  (C.  C.)  22  Fed.  66. 

2  Orient  Ins.  Co.  v.  Adams,  123  D.  S.  67,  8  Sup.  Ct.  68,  31  L. 
Ed.  63. 

a  L.  R.  3  P.  C.  72. 
HUGHES.AD— 6 


82  GENERAL    AVERAGE    AND    MARINE    INSURANCE.         (Ch.   3 

cargo  by  the  peril  insured  against,  but  that  it  was  a  total 
loss  of  the  disbursements. 


SAME— AGREED  VALUATION. 

39.  The   valuation  fixed  in   the  policy  is  binding, 
though  it  may  differ  from  the  actual  value. 

In  passing  upon  the  rights  and  obligations  of  insured  and 
underwriters,  the  valuation  in  the  policy,  except  as  above 
stated,  is  taken  as  conclusive  upon  the  parties.  Although 
this  may  sometimes  partake  of  the  nature  of  wager  policies, 
yet  the  convenience  of  having  a  certain  valuation  as  a  basis 
to  figure  on,  and  the  diminution  of  litigation  thereby,  have 
caused  the  courts  to  hold  the  parties  to  their  valuation.  The 
firmness  with  which  they  hold  to  this  doctrine  may  be 
judged  by  the  case  of  BARKER  v.  JANSON,1  where,  at 
the  time  the  policy  attached,  the  ship,  on  account  of  injuries, 
was  practically  of  no  value  at  all,  yet  the  court  held  both 
parties  bound  by  the  valuation. 

In  the  case  of  North  of  England  Iron  S.  S.  Ins.  Ass'n  v. 
Armstrong,2  a  policy  of  insurance  was  effected  for  £6,000 
on  a  vessel  valued  at  £6,000.  She  was  sunk  in  collision,  and 
the  underwriters  paid  for  a  total  loss.  Her  real  value  was 
£9,000.  Subsequently  £5,000  was  recovered  from  the  col- 
liding vessel.  The  court  held  that  it  all  belonged  to  the  un- 
derwriter by  subrogation  to  the  insured,  and  that  the  as- 
sured could  not  take  any  part  of  it  in  payment  for  the  actual 
valuation  of  his  vessel  uninsured. 

In  the  case  of  International  Nav.  Co.  v.  Atlantic  Mut. 
Ins.  Co.,3  the  vessel  was  valued  at  $2,000,000  for  the 
purpose  of  an  average  settlement  which  was  due.  The 
valuation  in  the  policy  was  $1,350,000.     The  underwriters 

§  39.     1  L.  R.  3  C.  P.  303. 
2  L.  R.  5  Q.  B.  244. 
8  (D.  C.)  100  Fed.  314. 


§    39)  THE    LOSS.  83 

claimed  that,  as  the  vessel  owner  had  recovered  in  general 
average  from  the  other  interests  on  the  basis  of  the  higher 
valuation,  they  should  be  entitled  to  share  any  such  average 
recovery  to  the  extent  of  the  excess  of  valuation.  In  other 
words,  they  contended  that  the  owner  should  be  treated  as 
constructive  insurer  of  the  difference  between  the  agreed 
valuation  and  the  actual  valuation  as  fixed  by  the  general 
average,  which  would  have  made  them  liable  for  only  about 
two-thirds  of  what  they  would  be  liable  for  if  the  actual 
valuation  had  been  adopted.  Judge  Brown,  however,  held 
that  this  valuation  was  conclusive  upon  them,  drawing  a 
distinction  in  his  opinion  between  the  rule  as  to  ships  in 
such  cases  and  the  rule  as  to  goods.  Here,  as  will  be  seen, 
the  valuation  fixed  by  the  policy  was  less  than  the  actual 
valuation. 

Under  these  same  circumstances,  however,  the  English 
courts  seem  to  hold  differently.  In  the  case  of  Balmoral 
Steamship  Co.  v.  Marten,4  the  vessel  was  insured  for  £33,000, 
and  valued  at  the  same  sum.  After  a  disaster  a  general 
average  was  had,  and  the  valuation  of  the  vessel  in  general 
average  was  fixed  at  £40,000.  Wigham,  J.,  held  that  the 
insurers,  under  these  circumstances,  were  liable  only  for 
thirty-three  fortieths. 

The  question  when  a  loss  is  partial  and  when  total  has 
been  discussed  under  the  head  of  total  loss. 

The  term  "particular  average"  is  nearly  synonymous  with 
"partial  loss,"  and  policies  which  contain  clauses  "warranted 
against  particular  average"  or  "warranted  against  average" 
are  practically  policies  insuring  against  total  loss  only. 

The  measure  of  recovery  in  case  of  partial  loss  is  in  one 
respect  strikingly  different  from  the  measure  of  recovery  in 
fire  insurance.  If  a  house  is  insured  against  fire  for  $5,000. 
and  the  value  of  the  house  is  $10,000  and  the  loss  is  $5,000. 

*  [1900]  2  Q.  B.  Div.  748.  As  to  the  valuation,  see,  also,  the  Poto- 
mac, 105  U.  S.  G30,  26  L.  Ed.  1194. 


84  GENERAL   AVERAGE    AND   MARINE    INSURANCE.         (Ch.   3 

the  insured  recovers  the  full  value  of  his  policy.  Under 
similar  circumstances  in  marine  insurance,  he  only  recovers 
such  proportion  of  the  loss  as  the  insured  portion  bears  to 
the  total  value,  it  being  considered  that  as  to  that  part  of 
the  value  which  is  not  insured  he  is  his  own  insurer,  and 
must  contribute  to  the  loss  to  that  extent.6  In  arriving  at 
these  proportions,  the  actual  value  of  the  subject  insured  is 
taken,  except  where  there  is  an  insured  value  fixed  in  the 
policy,  in  which  case  the  insured  value  is  taken. 

SAME— SUBROGATION  OF  INSURER. 

40.  An  insurer  who  has  paid  the  insurance  is  sub- 
rogated to  the  rights  of  the  insured  against 
others  liable  to  the  insured  for  the  loss. 

The  insured  is  entitled  to  recover  his  loss  from  the  un- 
derwriter, even  though  he  may  possess  other  remedies  for 
it.  For  instance,  if  he  can  recover  back  part  of  the  loss  in 
general  average,  the  underwriter  must  still  pay  him,  and 
look  to  the  collection  of  the  average  himself,  and  not  force 
the  insured  to  exhaust  his  remedies  on  general  average.1 

But,  when  the  underwriter  has  paid  the  loss,  he  is  en- 
titled by  subrogation  to  all  the  rights  of  the  insured  against 
any  other  parties  for  the  recovery  of  all  or  part  of  what  he 
has  paid.  In  such  case,  he  stands  in  the  shoes  of  the  as- 
sured, and  has  no  greater  rights  than  the  assured  himself 
would  have,  so  that,  if  the  assured  has  stipulated  away  his 
right  by  any  enforceable  clause  in  a  bill  of  lading  or  other- 
wise, the  underwriter  cannot  recover.  This  right  of  subro- 
gation springs,  not  necessarily  from  assignment,  but  from 
the  general  principles  of  equity.2 

c  2  Pars.  Mar.  Ins.  405;  Western  Assur.  Co.  v.  Transportation  Co., 
16  C.  C.  A.  65,  68  Fed.  923. 

§  40.     i  International  Nav.  Co.  v.  Insurance  Co.,  100  Fed.  304. 

2  See,  as  illustrating  the  extent  of  this  doctrine:    Liverpool  &  G. 


§    41)  THE    LOSS.  85 

SAME— SUING  AND  LABORING  CLAUSE. 

41.  In  addition  to  the  amount  of  his  loss,  the  in- 
sured may  recover,  under  the  suing  and 
laboring  clause  of  the  policy,  expenses  incur- 
red by  him  in  protecting  the  property. 

In  the  old  English  policy  this  clause  was  in  the  following 
language:  "And  in  case  of  any  loss  or  misfortune  it  shall 
be  lawful  to  the  assured,  their  factors,  servants,  and  assigns, 
to  sue,  labor,  and  travel  for,  in,  and  about  the  defense,  safe- 
guard, and  recovery  of  the  said  goods  and  merchandise,  and 
ship,"  etc.,  "or  any  part  thereof,  without  prejudice  to  this  in- 
surance." 

In  later  policies  the  clause  has  been  modified  largely  in 
the  interests  of  the  underwriter,  but  the  general  language  of 
it  is  the  same.  This  clause  is  intended,  in  mutual  interest, 
to  encourage  the  assured  to  do  everything  towards  making 
the  loss  as  light  as  possible ;  and  the  expenses  thereby  in- 
curred are  recoverable  outside  of  the  other  clauses  of  the 
policy,  even  though  in  some  instances  it  enables  the  assured 
to  recover  more  than  the  face  value  of  the  policy.  In  other 
words,  the  assured  may  recover  a  certain  amount  under 
that  clause  of  the  policy  giving  him  the  right  to  recover  for 
loss  caused  by  the  perils  of  the  sea,  etc.,  and  this  additional 
amount  as  expended  for  the  general  benefit,  and  this,  too, 
often  in  policies  insuring  against  total  loss  only.  And,  since 
an  abandonment  under  the  American  decisions  relates  back, 
the  underwriters  are  liable  for  the  acts  of  the  master  after 
abandonment,  as  he  is  then  their  agent.1 

W.  Steam  Co.  v.  Insurance  Co.,  129  U.  S.  397,  9  Sup.  Ct.  469,  32  L.  Ed. 
788;  Mobile  &  M.  Ry.  Co.  v.  Jurey,  111  U.  S.  584,  4  Sup.  Ct.  566,  28 
L.  Ed.  527;  Wager  v.  Insurance  Co.,  150  U.  S.  99,  14  Sup.  Ot.  55,  37 
L.  Ed.  1013;  Fairgrleve  v.  Insurance  Co.,  37  C.  C.  A.  190,  94  Fed.  686; 
Hall  v.  Railroad  Co.,  13  Wall.  367,  20  L.  Ed.  594. 
§  41.     i  Gilchrist  v.  Insurance  Co.,  104  Fed.  566. 


8ft  GENERAL    AVERAGE    AND    MARINE    INSURANCE.         (Ch.   3 

The  acts  of  the  insurer  or  the  underwriter,  in  sending  and 
making  efforts  to  save,  cannot  be  construed  as  an  accept- 
ance of  the  abandonment.2 

This  clause,  however,  only  covers  such  acts  of  the  under- 
writer as  are  authorized  by  the  policy.  If  the  underwriter 
takes  the  vessel  to  repair  her,  intending  to  return  her,  and 
keeps  her  an  unreasonable  time,  and  then  returns  her,  not 
in  as  good  condition  as  she  was  before,  the  suing  and  labor- 
ing clause  will  not  protect  him,  and  his  acts  in  so  doing, 
being  unauthorized  by  the  suing  and  laboring  clause,  will  be 
held  an  acceptance  of  the  notice  of  abandonment.3 

2  RICHELIEU  &  O.  NAV.  CO.  v.  INSURANCE  CO.,  136  U.  S.  408, 
10  Sup.  Ct.  934,  34  L.  Ed.  398. 

»  Washburn  &  M.  Mfg.  Co.  v.  Insurance  Co.,  179  U.  S.  1,  21  Sup. 
Ct.  1,  45  L.  Ed.  49;  Copelin  v.  Insurance  Co.,  9  Wall.  461,  19  L.  Ed. 
739. 


§   42)  BOTTOMRY    AND    RESPONDENTIA.  87 


CHAPTER  IV. 

OF  BOTTOMRY  AND  RESPONDENTIA;    AND  LIENS  FOR  SUP- 
PLIES, REPAIRS,  AND  OTHER  NECESSARIES. 

42.  "Bottomry"  Defined. 

43.  Requisites  of  Bottomry  Bond. 

44.  Respondentia. 

45.  Supplies,  Repairs,  and  Other  Necessaries. 

46.  "Material  Man"  Defined. 

47.  Necessaries  Furnished  in  Foreign  Porta. 

48.  "Necessaries"  Defined. 

49.  Necessaries  Furnished  Domestic  Vessels. 

50.  Domestic  Liens  as  Affected  by  Owner's  Presence. 

51.  Shipbuilding  Contracts. 

52.  Vessels  Affected  by  State  Statutes. 


"BOTTOMRY"  DEFINED. 

42.  This  is  an  obligation  executed  generally  in  a 
foreign  port  by  the  master  of  a  vessel  for 
repayment  of  advances  to  supply  the  neces- 
sities of  the  ship,  together  with  such  interest 
as  may  be  agreed  upon,  which  bond  creates 
a  lien  on  the  ship  which  may  be  enforced 
in  admiralty  in  case  of  her  safe  arrival  at 
the  port  of  destination,  but  becomes  abso- 
lutely void  and  of  no  effect  in  case  of  her 
loss  before  arrival.1 

This  is  an  express  lien  created  by  act  of  the  parties. 

The  Admiralty  Lien. 

Admiralty  is  not  a  difficult  branch  of  the  law,  and  the  diffi- 
culties of  this  part  arise  not  inherently,  but  from  the  con- 

$  42.     i  THE  GRAPESHOT,  9  Wall.  129,  19  L.  Ed.  051. 


S8  BOTTOMRY    AND    RESPONDENTIA..  (Ch.    4 

fusion  incident  to  the  use  of  the  word  "lien."  To  the  stu- 
dent of  the  common  law  its  use  suggests  the  ideas  which  our 
studies  in  that  branch  associate  with  it ;  and,  even  if  there 
was  such  a  production  in  those  modern  specialist  times  as 
an  admiralty  lawyer  ignorant  of  all  other  law,  the  confusion 
would  still  exist  to  a  lesser  extent,  since  the  word  is  used 
in  different  senses  in  marine  law  itself. 

The  admiralty  lien,  pure  and  simple,  is  strikingly  dissim- 
ilar from  the  common-law  lien.  Take  a  common-law  mort- 
gage as  an  illustration.  There  the  title  to  the  security  is 
conditionally  conveyed  to  the  creditor  and  he  has  a  prop- 
erty interest  in  it.  Take,  on  the  other  hand,  the  hotel  keep- 
er who  retains  the  trunks  of  his  guests  till  they  pay  for  their 
wine.  The  moment  he  relinquishes  possession  of  the  trunks 
he  loses  his  security,  for  his  lien  depends  on  possession.  In 
other  words,  the  common-law  liens  give  the  creditor  a  qual- 
ified title  or  right  of  possession  as  security  for  a  personal 
debt  due  by  the  owner  and  as  incident  to  such  a  debt. 

The  admiralty  lien  is  entirely  different.  Its  holder  has  no 
right  of  possession  in  the  ship.  It  exists  as  a  demand 
against  the  ship  itself  as  a  contracting  or  wrongdoing  thing, 
irrespective  of  the  fact  whether  the  creditor  has  any  personal 
action  against  the  owner  or  not.  It  is  not  a  mere  incident 
to  a  debt  against  the  owner,  but  a  right  of  action  against 
the  thing  itself, — a  right  to  proceed  in  rem  against  the  ship 
by  name,  in  which  the  owner  is  ignored,  may  never  appear, 
and  appears,  if  at  all,  not  as  defendant,  but  as  claimant.  It 
is  nearer  what  the  civil  law  terms  a  "hypothecation," — a  priv- 
ilege to  take  and  sell  by  judicial  proceedings  in  order  to  sat- 
isfy your  demand.  This  shows  how  little  it  has  in  common 
with  the  common-law  lien. 

As  said  above,  there  are  liens  in  admiralty  law  enforceable 
by  admiralty  process  which  yet  are  not  admiralty  liens  in 
the  above  sense.  Such  is  the  lien  of  the  ship  on  the  cargo 
for  freight  and  demurrage,  which  is  lost  by  delivery.  It  is 
to  be  regretted  that  the  term  was  not  limited  to  such  cases, 


§    43)  REQUISITES    OF    BOTTOMRY    BOND.  89 

and  some  better  expression,  such  as  a  privilege  or  right  of 
arrest,  substituted  in  the  others. 

The  lien  by  bottomry  is  a  good  instance  of  maritime  hy- 
pothecation. It  is  a  debt  of  the  ship,  arises  out  of  the  ne- 
cessities of  the  ship,  and  is  good  only  against  the  ship.  If 
the  ship  meets  with  a  marine  disaster,  and  seeks  shelter  and 
restoration  in  a  port  where  she  and  her  owners  are  .stran- 
gers without  credit,  her  master  may  borrow  money  for  the 
purpose  of  refitment,  and  secure  it  by  a  bond  pledging  the 
vessel  for  its  payment,  on  arrival  at  her  destination.  As  the 
bond  provides  that  it  shall  be  void  in  case  she  does  not  ar- 
rive, the  principal  is  at  risk,  and  therefore  a  high  rate  of  in- 
terest may  be  charged  without  violating  the  usury  laws. 

The  loss  which  avoids  a  bottomry  bond  is  an  actual  total 
loss.  The  doctrine  of  constructive  total  loss  is  found  only 
in  the  law  of  marine  insurance,  and  does  not  apply  in  con- 
sidering the  law  of  bottomry.2 


REQUISITES  OP  BOTTOMRY  BOND. 

43.  The  requisites  for  the  validity  of  a  bottomry 
bond  are  that  the  repairs  or  supplies  must 
be  necessary,  and  that  the  master  or  owner 
has  no  apparent  funds  or  credit  to  pay  for 
them  available  in  the  port. 

But,  if  the  lender  satisfies  himself  that  the  supplies  are  nec- 
essary, he  may,  in  the  absence  of  knowledge,  actual  or  con- 
structive, as  to  the  existence  of  funds  or  credit,  presume, 
from  the  fact  that  the  master  orders  them,  that  there  is  a 
necessity  for  the  loan,  and  his  lien  will  be  upheld,  in  the  ab- 
sence of  bad  faith. 

It  is  the  duty  of  the  master  to  communicate  with  the  own- 

2  Delaware  Mut.  .Safety.Ins.  Co.  v.  Gossler,  96  TL  S.  645,  24  L.  Ed. 
B63;  The  Great  Pacific,  L.  It.  2  P.  C.  516. 


90  BOTTOMRY    AND    RESPONDENTIA.  (Cb-.  4 

er  of  the  ship  or  cargo  proposed  to  be  bottomried  if  he  can.1 
The  modern  facilities  for  communication  and  ease  of  trans- 
ferring funds  from  port  to  port  have  rendered  bottomry 
bonds  less  common  than  in  former  times.  In  America  the 
right  to  bind  a  vessel  for  repairs  and  supplies  as  a  maritime 
contract  without  any  bottomry  renders  them  rarely  needed. 
The  holder  of  a  bottomry  bond  must  enforce  it  promptly 
after  the  arrival  of  the  ship,  or  he  will  be  postponed  to  any 
subsequently  vested  interests.2 

Among  different  bottomry  bonds  the  last  is  paid  first. 
This  is  another  sharp  distinction  between  admiralty  and 
common-law  liens.  Among  admiralty  liens  of  the  same  gen- 
eral character,  the  last  takes  precedence ;  the  theory  being 
that  the  last  is  for  the  benefit  of  the  preceding  ones,  and  con- 
tributes to  saving  the  ship  in  the  best  possible  condition  for 
all  concerned.3  The  case  of  O'Brien  v.  Miller  *  contains  a 
form  of  bottomry  bond  printed  in  full. 

RESPONDENTIA. 

44.  This  is  a  hypothecation  of  cargo,  similar  in 
nature,  purposes,  requisites,  and  effect  to  the 
hypothecation  of  the  vessel  by  bottomry. 

A  bottomry  bond  may  hypothecate  not  only  the  vessel  but 
the  cargo.  If  it  is  on  the  cargo  alone  it  is  called  a  "respon- 
dentia bond."  Since  the  master  has  greater  powers  as  agent 
of  the  vessel  owner  than  he  has  as  agent  of  the  cargo  owner, 
it  requires  a  stronger  necessity  and  a  stronger  effort  to  com- 
municate with  the  cargo  owner  in  order  to  sustain  a  re- 

§  43.     i  The  Karnak,  L.  R.  2  Adm.  &  Ecc.  289;  Id.,  2  P.  C.  505. 

2  The  Charles  Carter,  4  Cranch,  328,  2  L.  Ed.  636. 

s  The  Omer,  2  Hughes,  96,  Fed.  Cas.  No.  10,510. 

*  168  U  S.  287,  18  Sup.  Ct.  140,  42  L.  Ed.  469.  The  following  cases 
are  interesting  and  typical:  The  Virgin.  8  Pet.  554,  8  L.  Ed.  1036; 
THE  GRAPESHOT,  9  Wall.  129,  19  L.  Ed.  651. 


§§    45-46)       SUPPLIES,    REPAIRS,   AND    OTHER    NECESSARIES.         91 

spondentia  bond  than  to  sustain  a  bottomry.1  In  other  re- 
spects the  law  as  to  the  two  is  similar.  Of  course,  admi- 
ralty courts  have  cognizance  of  suits  to  enforce  these  bonds.2 


SUPPLIES,  REPAIRS,  AND  OTHER  NECESSARIES. 

45.  The  lien  of  material  men  for  supplies  and  re- 

pairs or  other  necessaries  is  an  instance  of 
implied  hypothecation,  very  similar  to  the 
bottomry  lien  for  moneys  advanced  with  the 
same  object,  the  latter  being  an  express  hy- 
pothecation. 

46.  "MATERIAL   MAN"   DEFINED— A   material 

man  is  one  whose  trade  it  is  to  repair  or 
equip  ships,  or  furnish  them  with  tackle  and 
necessary  provisions.1 

Under  the  general  admiralty  law  as  expounded  by  the  su- 
preme court,  the  material  man  who  furnished  necessaries  to  a 
vessel  in  a  foreign  port  on  the  order  of  her  master  was  pre- 
sumed to  credit  the  vessel,  even  though  nothing  was  said  on 
the  subject,  and  he  could  therefore  proceed  against  the  vessel. 
The  reason  was  the  apparent  necessity  for  credit  in  the  ab- 
sence of  her  owner,  in  order  to  enable  the  vessel  to  carry  out 
the  objects  of  her  creation.  As  Mr.  Justice  Johnson  ex- 
pressed it  in  The  St.  Jago  de  Cuba,2  it  was  to  furnish  wings 
and  legs  to  the  vessel  to  enable  her  to  complete  her  voyage. 

For  the  same  reason,  necessaries  furnished  a  domestic  ves- 
sel gave  no  claim  against  the  vessel,  but  could  be  asserted 
simply  against  the  owner;  for  in  such  case  the  necessity  for 

§  44.  i  THE  JULIA  BLAKE,  107  U.  S.  418,  25  Sup.  Ct  692,  27  L. 
Ed.  595. 

2  Admiralty  Rule  18. 

§§  45-46.     i  The  Neptune,  3  Hagg.  Adm.  142. 

a  0  Wheat.  416,  6  L.  Ed.  122. 


92  BOTTOMRY    AND    RESPONDENTIA.  (ChT  4 

the  credit  ceased,  and  the  presumption  would  be  that  the 
credit  was  given  to  him. 

It  is  proper  to  consider,  then,  (i)  necessaries  furnished  in 
foreign  ports;    (2)  necessaries  furnished  in  domestic  ports. 

SAME— NECESSARIES    FURNISHED  IN  EC-REIGN 
PORTS. 

47.  For  supplies  furnished  a  foreign  vessel  on  the 
order  of  the  master  in  the  absence  of  the 
owner  the  law  implies  a  lien.  But  the  pre- 
sumption is  against  a  lien  if  ordered  by  the 
owner  or  by  the  master  when  the  owner  is 
in  the  port. 

As  the  master  in  a  proper  case  may  bind  the  vessel  for 
such  necessaries  by  means  of  a  bottomry  bond,  so  he  may 
contract  direct  with  the  material  men.  By  so  using  his  ship 
as  a  basis  of  credit,  he  saves  the  marine  interest  usually 
charged  in  such  bonds.  The  test  of  his  power  is  the  needs 
of  his  vessel.  He  cannot  do  this  unless  the  necessity  is 
shown  for  the  supplies  or  repairs,  but  when  that  is  shown 
the  rest  is  presumed.  The  material  man  may  then  assume 
from  the  necessity  of  the  repairs,  and  the  fact  that  the  mas- 
ter ordered  them,  that  a  necessity  exists  for  the  credit,  even 
though  in  point  of  fact  the  master  had  funds  which  he  might 
have  used.  Only  knowledge  of  this  fact  or  willful  shutting 
of  the  eyes  to  avoid  knowledge  would  defeat  the  material 
man's  claim.1  As  the  basis  of  this  implied  hypothecation  is 
the  power  of  the  master  as  agent  of  the  owner  in  the  latter's 
absence,  the  presence  of  the  owner  defeats  the  master's  im- 
plied power,  and  in  such  case  the  presumption  in  the  absence 
of  other  evidence  of  intent  is  that  credit  was  given  to  the 
owner.2 

§  47.     1  THE  KALOKAMA,  10  Wall.  204,  19  L.  Ed.  944. 
2  THE  VALENCIA,  1G5  U.  S.  270,  271,  17  Sup.  Ct.  323,  41  L.  Ed. 
710. 


§    47)  SUPPLIES,   REPAIRS,    AND    OTHER    NECESSARIES.  93 

But  in  such  case  the  owner  himself  may  bind  the  vessel 
by  agreeing  that  the  material  man  may  look  to  the  vessel; 
and,  indeed,  if  it  appeared  that  the  owner  had  no  credit  or 
was  embarrassed  or  insolvent,  the  presumption  would  prob- 
ably be  that  the  credit  was  given  to  the  vessel,  and  not  to 
him.3 

It  is  largely  a  question  of  fact,  governed  by  the  special 
circumstances  of  each  case.  The  fact  that  the  supplies  are 
charged  to  the  vessel  by  name  on  the  creditor's  books  is  re- 
garded as  evidence  of  an  intent  to  credit  the  vessel,  though 
not  very  strong  evidence,  as  such  entries  are  self-serving.4 

This  power  is  one  that  cannot  be  delegated,  and  is  limited 
to  the  master  or  actual  owner.  Suppose  the  vessel  is  char- 
tered,— that  is,  hired  by  the  owner  to  some  one  else  to  oper- 
ate her, — under  an  agreement  that  the  charterer  is  to  fur- 
nish all  running  supplies  and  the  owner  is  to  furnish  the 
crew.  In  that  case  it  is  thoroughly  settled  that  the  material 
man  cannot  proceed  against  the  vessel  for  such  supplies  fur- 
nished, even  on  the  order  of  the  master,  if  the  material  man 
knew  or  could  have  ascertained  that  the  charterer's  power 
was  so  limited.5  And  this  is  true  as  to  a  vendee  in  posses- 
sion under  a  sale,  where  the  vendor  retains  title  till  payment. 
He  cannot  bind  the  vessel.6 

Even  in  case  of  chartered  vessels,  if  the  supplies  were  or- 
dered in  a  foreign  port  by  the  master,  it  would  seem  that 
the  vessel  would  be  bound,  unless  the  material  man  knew 
or  could  have  ascertained  the  limitations  of  the  charter  party. 

By  "foreign  port"  is  meant  not  simply  ports  of  foreign 

s  THE  KALORAMA,  10  Wall.  204,  19  L.  Ed.  944;  The  Patapsco, 
13  Wall.  329,  20  L.  Ed.  696. 

*  The  Mary  Bell,  1  Sawy.  135,  Fed.  Cas.  No.  9,199;  The  Samuel 
Marshall,  4  C.  C.  A.  385,  54  Fed.  396;  The  Ella  (D.  0.)  84  Fed.  471. 

5  The  Kate,  164  TJ.  S.  458,  17  Sup.  Ct.  135,  41  L.  Ed.  512;  THE 
VALENCIA.  If,.'  U.  S.  204,  17  Sup.  Ct.  323,  41  L.  Ed.  710. 

e  The  H.  C.  Grady  (D.  C.)  87  Fed.  232. 


94  BOTTOMRY    AND    RESPONDENTIA.  (Ch.    4 

countries,  but  in  this  respect  the  states  also  are  foreign  to 
each  other.  The  character  of  the  vessel  is  presumptively 
determined  by  her  port  of  registry,  so  that,  if  a  vessel  reg- 
istered in  New  York  goes  to  Jersey  City,  she  is  in  a  for- 
eign port  for  the  purposes  of  this  doctrine.7 

This,  however,  is  only  a  presumption,  and  may  be  over- 
come by  showing  the  real  residence  of  the  owner.  Hence, 
if  a  vessel,  though  registered  in  New  York,  has  an  owner 
living  in  Norfolk,  and  the  supply  man  knows  this,  or  by  rea- 
sonable diligence  could  ascertain  it,  supplies  ordered  in  Nor- 
folk would  be  treated  as  ordered  in  the  home  port.  And 
this  is  true  also  as  to  a  charterer  operating  a  ship  under  a 
charter  that  amounts  to  a  demise.8 

These  claims,  being  maritime  in  their  nature,  take  preced- 
ence of  common-law  liens.  Hence,  though  not  required  by 
any  law  to  be  recorded,  they  take  precedence  of  a  prior  re- 
corded mortgage,  on  the  maritime  theory  that,  being  intend- 
ed to  keep  the  ship  going,  they  are  for  the  benefit  of  other 
liens,  as  tending  to  the  preservation  of  the  res.9 

How  Waived  or  Lost. 

Taking  a  note  or  acceptance  for  a  claim  of  this  sort  is 
not  a  novation  or  waiver  of  the  right  to  hold  the  vessel,  un- 
less so  understood.10  Such  a  claim  is  lost  under  some  cir- 
cumstances by  delay  in  enforcing  it.  In  such  cases  it  be- 
comes "stale,"  to  use  the  language  of  the  admiralty  judges. 
In  its  general  principles  the  doctrine  of  staleness  is  sub- 
stantially the  same  as  the  equitable  doctrine  of  the  same 
name.  In  its  application  admiralty  is  perhaps  prompter  in 
enforcing  it. 

7  THE  KALORAMA,  10  Wall.  210-212,  19  L.  Ed.  944. 

s  The  Ellen  Holgate  (D.  C.)  30  Fed.  125;  The  Francis  (D.  0.)  21 
Fed.  715;  The  Samuel  Marshall,  4  C.  C.  A.  385,  54  Fed.  396. 

»  The  Emily  Souder,  17  Wall.  666,  21  L.  Ed.  683;  THE  J.  B. 
RUMBELL,  148  U.  S.  1,  13  Sup.  Ct.  498,  37  L.  Ed.  345. 

10  The  Emily  Souder,  17  Wall.  606,  21  L.  Ed.  083. 


§   47)  SUPPLIES,   REPAIRS,  AND    OTHER    NECESSARIES. 


95 


As  between  the  original  parties,  the  claim  would  hold  by 
analogy  until  a  personal  suit  of  the  same  nature  would  be 
barred  by  the  act  of  limitations,  in  the  absence  of  special 
circumstances,  such  as  loss  of  evidence  or  changed  condi- 
tion of  parties.  But,  where  other  interests  have  been  ac- 
quired in  ignorance  of  its  existence,  it  would  be  held  stale 
in  a  much  shorter  period,  depending  on  the  frequency  of 
opportunities  for  enforcing  it.11 

Illustrations  of  such  interests  would  be  an  innocent  pur- 
chaser for  value  or  a  subsequent  supply  claim.  A  holder  of 
a  mortgage  to  secure  a  subsequent  debt  is  a  purchaser  for 
value,  but  not  to  secure  an  antecedent  debt.12  As  against 
innocent  purchasers,  even  as  short  a  delay  as  three  months 
in  enforcement,  where  there  was  ample  opportunity,  has 
been  held  to  render  a  claim  stale.13  In  older  days,  when 
vovages  were  longer,  they  were  often  held  stale  after  one 
voyage.14  On  the  Lakes,  the  limit,  in  the  absence  of  special 
circumstances,  is  one  season  of  navigation.16  In  short,  the 
time  varies  according  to  the  opportunity  of  enforcement,  the 
change  in  the  situation  of  the  parties,  and  the  hardship  oc- 
casioned or  avoided  by  enforcing  it  or  denying  it.18  The 
supply  man  acquires  his  right  against  the  vessel,  not  only 
by  furnishing  necessaries  in  his  own  port,  but  by  shipping 
them  to  the  vessel  in  another  port.17 

11  THE  SARAH  ANN".  2  Suran.  206,  Fed.  Cas.  No.  12.342;  The 
Key  City,  14  Wall.  G53,  20  L.  Ed.  896;  The  Queen  (D.  C.)  78  Fed.  155. 

12  THE  CHUSAN,  2  Story,  455,  Fed.  Cas.  No.  2.717;  The  Ella  (D. 
C.)  81  Fed.  471. 

13  Coburn  v.  Insurance  Co.  (C.  C.)  20  Fed.  644. 

14  The  General  Jackson,  1  Spr.  554,  Fed.  Cas.  No.  5,314. 

is  The  Hercules,  1  Spr.  534,  Fed.  Cas.  No.  6,401;  The  Nebraska,  17 
C.  C.  A.  94,  09  Fed.  1009. 

is  The  Harriet  Ann,  6  Biss.  13,  Fed.  Cas.  No.  6,101;  The  Eliza 
Jane.  1  Spr.  152,  Fed.  Cas.  No.  4,363;  THE  CHUSAN,  2  Story,  455, 
Fed.  Cas.  No.  2,717;  The  Thomas  Sherlock  (D.  C.)  22  Fed.  253;  The 
Tiger  (D.  C.)  90  Fed.  826. 

17  The  Marion  S.  Harris,  29  C.  C.  A.  428,  85  Fed.  798. 


96  BOTTOMRY    AND    RESPONDENTIA.  (Ch!   4 

Advances. 

Not  only  the  supply  man  can  proceed  against  vhe  vessel, 
but  any  one  who  advances  money  on  the  credit  of  the  ves- 
sel, express  or  implied,  for  the  purpose  of  paying  for  such 
necessaries,  has  a  claim  against  the  vessel.  In  other  words, 
advances  of  money  under  such  circumstances  are  necessa- 
ries.18 Of  course,  money  lent  to  the  master  or  owner  with- 
out reference  to  the  ship,  or  money  advanced  to  pay  oft 
claims  not  maritime,  cannot  be  collected  by  suit  against  the 
vessel.18 

SAME— "NECESSARIES"  DEFINED. 

48.  "Necessaries,"  in  this  connection,  mean  what- 
ever is  fit  and  proper  for  the  service  on 
■which  a  vessel  is  engaged.  Whatever  the 
owner  of  that  vessel,  as  a  prudent  man, 
■would  have  ordered  if  present  at  the  time, 
comes  ■within  the  meaning  of  the  term,  as 
applied  to  those  repairs  done  or  things  pro- 
vided for  the  ship  by  order  of  the  master. 

Care  must  be  taken  to  consider  the  meaning  of  the  term 
"necessaries,"  as  used  in  connection  with  this  doctrine  of 
supplies  and  repairs.  In  a  broad  sense  of  the  word,  any- 
thing is  necessary  for  the  ship  which  tends  to  facilitate  her 
use  as  a  ship  or  to  save  her  from  danger.  In  that  sense 
seaman's  wages,  towage,  salvage,  and  all  the  other  things 
which  come  under  the  admiralty  jurisdiction  would  be  nec- 
essary. But  this  is  not  the  meaning  when  used  in  connec- 
tion with  supplies  and  repairs.  If  it  were,  then,  as  neces- 
saries furnished  a  domestic  vessel  are  the  basis  of  a  claim 
against  the  vessel  only  when  the  state  statute  gives  it,  that 

is  The  Emily  Souder,  17  Wall.  666,  21  L.  Ed.  683;  The  Guid- 
ing Star  (0.  C.)  18  Fed.  263. 

is  The  A.  K.  Dunlap,  1  Low.  350,  Fed.  Cas.  No.  513. 


§   48)  SUPPLIES,    REPAIRS,   AND    OTHER    NECESSARIES.  97 

would  put  it  in  the  power  of  the  state  legislature  to  create 
or  take  away  some  of  the  most  ancient  grounds  of  jurisdic- 
tion in  admiralty.  In  the  sense  in  which  the  word  is  now  being 
used,  it  is  always  associated  with  supplies  and  repairs,  and 
it  means  merely  such  things  of  that  general  nature  as  are 
fit  and  proper  for  the  use  of  the  ship.  It  is  not  used  in  as 
strong  a  sense  as  its  colloquial  meaning  would  imply.  It 
does  not  mean  essential,  but  merely  fit  and  proper.  What- 
ever is  fit  and  proper  for  the  use  of  a  vessel  as  a  profitable 
investment,  and  would  have  been  ordered  by  a  prudent 
owner  if  present,  comes  within  the  term.1 

The  definition  given  in  the  black-letter  heading  is  that  of 
Lord  Tenterden  in  the  case  of  Webster  v.  Seekamp.2  It 
is  adopted  by  Sir  Robert  Phillimore  in  the  case  of  The 
Riga,3  which  may  be  noted  as  a  leading  case  on  the  sub- 
ject. It  is  defined  by  Judge  Dyer  to  mean  "those  things 
which  pertain  to  the  navigation  of  the  vessel,  and  which  are 
practically  incidental  to,  and  connected  with,  her  naviga- 
tion." * 

It  is  wider  in  its  meaning  than  when  used  by  the  com- 
mon-law courts  in  reference  to  the  contracts  of  infants.  For 
instance,  supplies  to  the  restaurant  of  a  passenger  steamer 
have  been  allowed.6  And  Judge  Benedict  has  carried  the 
principle  so  far  as  to  hold  that  liquor  furnished  to  the  bar 
of  a  passenger  steamer  comes  under  the  same  head,  as  "sup- 
plying the  ordinary  wants  of  the  class  of  passengers  trans- 
ported on  the  boat."  6  It  includes  muskets  or  arms  to  pro- 
tect a  vessel  from  pirates.7    It  has  been  held  to  include  pro- 

§  48.     i  THE  GRAPESHOT,  9  Wall.  129,  19  L.  Ed.  651. 
2  4  Barn.  &  Aid.  352. 
«  L.  K.  3  Adm.  &  Ecc.  516. 
*  Hubbard  v.  Roach,  9  Biss.  375,  2  Fed.  393. 
s  The  Plymouth  Rock,  13  Blatchf.  505,  Fed.  Oas.  No.  11,237. 
«  The  Long  Branch,  9  Ben.  89,  Fed.  Cas.  No.  8,484;  The  Mayflower 
(D.  C.i  39  Fed.  42. 

i  Weaver  v.  The  S.  G.  Owens,  1  Wall.  Jr.  359,  Fed.  Cas.  No.  17,310. 

HUGHES.AD.— 7 


98  BOTTOMRY    AND    RESPONDENTIA.  (Ch.   4 

visions,  money,  rope,  life-preservers,  chronometers,  and  nets 
for  a  fishing  vessel.8 

This  doctrine  is  analogous  to  the  supply  lien  given  by 
section  2485  of  the  Virginia  Code  to  those  who  furnish 
supplies  to  corporations.  In  the  case  of  Fosdick  v. 
Schall,9  the  supreme  court  had  decided  that  men  who 
furnished  supplies  to  a  railroad  necessary  to  keep  it  going- 
had  a  lien  on  the  income  prior  to  a  previous  mortgage,  thus 
overturning  common-law  ideas,  and  ingrafting  an  admiralty 
principle  upon  chancery  law.  Section  2485  of  the  Code  and 
similar  statutes  of  other  states  have  adopted  it  as  a  part  of 
our  statute  law. 


SAME— NECESSARIES  FURNISHED   DOMESTIC 

VESSELS. 

49.  For  supplies  or  other  necessaries  furnished  a 
domestic  vessel  there  is  no  implied  lien  un- 
less there  is  a  local  statute  giving  it. 

As  in  such  cases  the  owner  is  accessible,  the  reason  for 
giving  the  master  power  to  bind  the  vessel  ceases,  and  hence 
the  court  decided  early  in  its  history  that  in  case  of  sup- 
plies to  domestic  vessels  the  credit  was  presumptively  given 
to  the  owner,  and  not  to  the  vessel.1 

Validity  of  State  Statutes  Giving  Such  Liens. 

In  the  course  of  the  opinion  the  court  intimated  that  if 
a  state  statute  gave  a  right  against  the  vessel  in  such  cases 
they  might  enforce  it.     Acting  upon  the  hint,  many  states 

s  The  Ellen  Holgate  (D.  C.)  30  Fed.  125;  The  L-udgate  Hill  (D.  C.) 
21  Fed.  431;  The  Belle  of  the  Coast,  19  C.  C.  A.  345,  72  Fed.  1019; 
The  Georgia  (D.  C.)  32  Fed.  637;  The  Hiram  R.  Dixon  (D.  C.)  33  Fed. 
297. 

9  99  U.  S.  235,  25  L.  Ed.  339. 

§  49.     1  THE  GENERAL.  SMITH,  4  Wheat.  443,  4  L.  Ed.  609. 


§    49)  SUPPLIES,   REPAIRS,  AND  OTHER    NECESSARIES.  99 

passed  acts  giving  rights  of  action  in  rem  against  domestic 
vessels,  and  even  authorized  their  own  courts  to  enforce 
them. 

The  federal  constitution,  in  conferring  admiralty  jurisdic- 
tion upon  the  federal  courts,  provided  that  it  should  be  ex- 
clusive. And  the  judiciary  act  of  1789,  carrying  into  effect 
this  constitutional  provision,  conferred  this  jurisdiction  in 
the  first  instance  on  the  district  courts,  but  added  a  clause 
saving  to  the  common-law  courts  all  remedies  which  the 
common  law  was  competent  to  give.  Hence  the  courts  had 
to  decide  that  those  state  enactments  which  purported  to 
bestow  on  their  courts  jurisdiction  in  rem  to  enforce  a 
maritime  right  were  unconstitutional.  This  principle,  how- 
ever, only  applied  to  proceedings  in  rem  pure  and  simple. 
For  instance,  an  act  which  gave  seamen  a  right  to  sue  the 
owner  for  their  wages  in  a  state  court  was  held  not  a  pro- 
ceeding in  rem,  even  though  accompanied  by  an  attach- 
ment ;  for  it  was  still  against  the  owner  by  name,  not  against 
the  vessel  by  name,  and  the  attachment  was  only  an  inci- 
dent.2 On  the  other  hand,  a  statute  authorizing  a  proceed- 
ing in  rem  directly  against  the  vessel,  in  which  any  notice  to 
the  owners  was  only  an  incident,  and  only  given  if  known, 
was  held  unconstitutional.8 

But,  though  the  courts  decided  that  state  legislation  could 
not  confer  on  state  courts  the  right  to  enforce  an  admiralty 
claim  against  a  vessel  by  pure  proceedings  in  rem,  they  also 
decided  that,  as  it  was  in  its  nature  a  maritime  cause  of  ac 
tion,  the  United  States  courts  could  enforce  it.  In  other 
words,  the  effect  of  these  decisions  was  that  a  state  statute, 
could  create  a  right  to  proceed  in  rem  on  a  maritime  cause 
of  action  where  none  had  previously  existed,  and  that  the 
federal  courts,  finding  such  a  maritime  right  in  existence, 
no  matter  how  it  arose,  would  enforce  it. 

*  Leon  v.  Galceran,  11  Wall.  185,  20  L.  Ed.  74. 

»  The  Glide,  1G7  U.  S.  006,  17  Sup.  Ct.  930,  42  L.  Ed.  296. 


100  BOTTOMRY    AND   RESPONDENTIA.  (Ch.  1 

The  Twelfth  Admiralty  Rule. 

The  supreme  court  went  further  than  this.  By  the  act 
of  August  23,  1842,  congress  had  conferred  upon  it  power 
to  prescribe  the  forms  and  modes  of  process  and  proceed- 
ing and  the  practice  generally  in  equity  and  admiralty  for 
the  federal  courts  of  original  jurisdiction.  Acting  under  this 
authority,  the  court  at  December  term,  1844,  promulgated 
the  admiralty  rules,  which  are  still  in  force,  and  furnish 
an  admirable  code  of  pleading  and  practice. 

The  twelfth  of  these  rules  provided :  "In  all  suits  by  ma- 
terial men  for  supplies  or  repairs,  or  other  necessaries,  for 
a  foreign  ship,  or  for  a  ship  in  a  foreign  port,  the  libelant 
may  proceed  against  the  ship  and  freight  in  rem,  or  against 
the  master  or  owner  alone  in  personam.  And  the  like  pro- 
ceeding in  rem  shall  apply  to  cases  of  domestic  ships, 
where,  by  the  local  law,  a  lien  is  given  to  material  men  for 
supplies,  repairs  or  other  necessaries." 

This  was  a  mere  affirmation  of  the  then  existing  practice. 
It  remained  in  this  form  until  1859,  when  the  court,  im- 
pressed by  the  diversity  in  the  state  statutes  which  it  had 
undertaken  to  recognize,  amended  it  so  as  to  read  as  fol- 
lows :  "In  all  suits  by  material  men  for  supplies,  or  repairs, 
or  other  necessaries  for  a  foreign  ship,  or  for  a  ship  in  a 
foreign  port,  the  libelant  may  proceed  against  the  ship  and 
freight  in  rem,  or  against  the  master  or  owner  alone  in 
personam.  And  the  like  proceeding  in  personam,  but  not  in 
rem,  shall  apply  to  cases  of  domestic  ships,  for  supplies,  re- 
pairs, or  other  necessaries." 

The  effect  of  this  was  to  take  away  the  right  to  proceed 
in  rem  for  necessaries  furnished  to  domestic  vessels,  even 
though  given  by  a  state  statute.  And  in  the  case  of  The 
St.  Lawrence,4  decided  soon  afterwards,  Chief  Justice 
Taney  justified  this  action  by  saying  that  the  question 
whether  a  creditor  should  proceed  in  rem  or  in  personam 

*  1  Black,  522,  17  L.  Ed.  180. 


§    49)  SUPPLIES,   REPAIRS,   AND    OTHER    NECESSARIES.  101 

to  enforce  a  maritime  right  was  a  mere  question  of  proce- 
dure, which  the  court  might  allow  or  abolish  at  its  pleas- 
ure. This  rule  remained  in  this  form  till  May  6,  1872,  when 
the  court  again  amended  it  so  as  to  read  as  follows :  "In 
all  suits  by  material  men  for  supplies  or  repairs  or  other 
necessaries,  the  libelant  may  proceed  against  the  ship  and 
freight  in  rem,  or  against  the  master  or  owner  alone  in 
personam."  The  effect  of  this  was  to  give  exactly  the  same 
procedure  in  the  case  of  domestic  and  foreign  vessels. 

It  does  not  mention  the  existence  of  a  state  statute  as 
requisite  to  the  enforcement  of  a  lien  against  a  domestic 
vessel.  If,  as  Justice  Taney  says,  it  is  a  mere  question  of 
procedure  which  the  court  can  give  or  take  away  at  will,  it 
is  difficult  to  see  why  the  language  of  this  rule  does  not 
give  the  right  independent  of  state  statutes,  though  the 
decisions  have  settled  that  in  case  of  domestic  vessels  it  is 
only  enforced  when  given  by  a  state  statute.  But,  in  the 
great  case  of  THE  LOTTA WANNA,6  Mr.  Justice  Bradley 
said  that  a  right  to  proceed  in  rem  was  not  a  mere  right  of 
procedure,  but  a  right  of  property  which  the  court  by  rule 
could  not  give  or  take  away,  and  that  the  amendment  of 
1872  was  not  intended  to  give  any  lien,  but  merely  to  re- 
move all  impediments  in  enforcing  such  as  already  existed. 
This  being  so,  the  kaleidoscopic  changes  of  the  twelfth  rule 
have  only  created  confusion.  If  there  had  never  been  any 
twelfth  rule,  the  result  as  settled  by  the  late  decisions  would 
be  the  same.  Prior  to  its  enactment  in  1844,  the  right 
given  by  state  statutes  had  been  enforced,  and  to-day  the 
rule,  as  construed  by  its  makers,  creates  no  new  right,  but 
merely  removes  impediments  in  enforcing  a  right  alread\ 
existing. 

The  fact  is  that  the  whole  doctrine  is  unsatisfactory  and 
illogical  in  its  development.  Its  difficulties  commenced 
when  the  court,  following  the  narrow  views  of  the  English 

»  21  Wall.  558,  22  L.  Ed.  Co-i. 


102  BOTTOMRY    AND    KESPONDENTIA.  (Ch.   4 

law,  denied  that  any  right  of  procedure  in  rem  existed  in 
the  case  of  domestic  vessels.  The  increasing  needs  of  mod- 
ern commerce  demanded  such  liens,  and  the  court  has  al- 
lowed them  at  last,  and  reached  the  true  goal,  but  by  a 
devious  path.  Any  one  who  reads  the  dissenting  opinion  of 
Mr.  Justice  Clifford  in  THE  LOTTAWANNA  CASE  will 
be  convinced  that  by  the  general  principles  of  maritime  law 
there  was  no  distinction  between  foreign  and  domestic  ves- 
sels, and  that  it  would  have  saved  much  confusion  and  liti- 
gation if  the  court  had  promptly  come  out  and  corrected  its 
error,  as  it  did  on  the  tide-water  question. 

Mr.  Justice  Bradley,  in  the  majority  opinion  of  that  same 
case,  is  forced  to  say  that  this  idea  of  a  state  giving  an  addi- 
tional remedy  to  an  admiralty  contract  and  of  a  federal 
court  recognizing  and  enforcing  it  is  anomalous.  He  at- 
tributes it  to  the  fact  that  the  state  admiralty  courts  prior  to 
the  constitution  recognized  and  enforced  it,  and  that  the 
new  federal  judges,  many  of  whom  had  been  state  judges, 
continued  the  same  jurisdiction,  without  recognizing  their 
altered  relations. 

Perhaps  a  stronger  reason  is  that  state  statutes  only  in- 
cidentally affecting  commerce,  like  pilotage  laws,  quarantine 
laws,  and  laws  authorizing  bridges  over  navigable  streams, 
have  been  upheld  as  valid  in  the  absence  of  legislation  by 
congress,  and  that  these  statutes  belong  to  the  same  cate- 
gory.6 

At  the  same  time  it  must  be  remembered  that  the  admi- 
ralty jurisdiction  is  not  dependent  upon  the  commerce  clause 
of  the  constitution,  but  is  derived  from  an  entirely  different 
one.7  The  history  and  changes  of  the  twelfth  admiralty  rule 
may  be  traced  in  the  cases  stated  in  the  footnote.8    As  the 

e  21  Wall.  581,  582,  22  L.  Ed.  664. 

7  Const,  art.  3,  §  2;  EX  PARTE  GARNETT,  141  XL  S.  1,  11  Sup. 
Ct.  840,  35  L.  Ed.  631. 

s  THE  GENERAL  SMITH,  4  Wheat.  443,  4  L.  Ed.  609;  The  St 
Lawrence,  1  Black,  522,  17  L.  Ed.  180;  The  Circassian,  Fed.  Oas.  No. 


§    50)  SUPPLIES,    REPAIRS,   AND    OTHER    NECESSARIES.  103 

right  arises  from  a  state  statute,  the  provisions  of  the  state 
statute  as  to  recording,  time  of  enforcement,  etc.,  are  bind- 
ing. But  in  THE  J.  E.  RUMBELL,  supra,  Mr.  Justice 
Gray  strongly  intimated  that,  as  it  was  enforced  on  the  the- 
ory of  its  being  a  maritime  right,  it  took  precedence  of  non- 
maritime  rights  in  the  teeth  of  the  state  provisions. 

In  general,  this  right  against  domestic  vessels  is  governed 
by  the  principles  which  apply  in  case  of  foreign  vessels.  It 
is  prior  to  nonmaritime  liens ;  it  is  not  waived  by  taking  a 
note;  it  becomes  stale  usually  in  less  time  than  in  case  of 
foreign  vessels,  as  it  is  more  easily  enforceable ;  it  is  given 
for  advances,  and  for  things  not  merely  necessary,  but  fit 
and  proper. 

SAME— DOMESTIC    LIENS    AS   AFFECTED    BY   OWN- 
ER'S PRESENCE. 

60.  The  better  opinion  is  that  in  case  of  domestic 
vessels  also  the  presumption  is  against  a  lien 
if  the  supplies  are  ordered  by  the  owner  or 
by  the  master  when  the  owner  is  in  the 
port. 

There  is  great  conflict  of  decision  on  the  question  wheth- 
er the  doctrine  above  explained  in  relation  to  foreign  ves- 
sels, that  the  presence  of  the  owner  defeats  the  lien,  and  that 
there  is  no  claim  against  the  vessel  unless  there  is  an  express 
understanding,  applies  to  liens  on  domestic  vessels  created  by 
a  state  statute.  There  is  much  respectable  authority  for  the 
proposition  that  where  the  statute  uses  general  terms,  and 
says  nothing  about  the  necessity  of  an  express  understand- 
ing, the  lien  will  arise  by  virtue  of  the  provisions  of  the  stat- 
ute itself.     And  so,  in  the  case  of  The  Alvira,1  Judge  Mor- 

2,720a;   THE  LOTTA WANNA,  21  Wall.  558,  22  L.  Ed.  654;    THE  J. 
E.  RUMBELL,  14S  U.  S.  1,  13  Sup.  Ct.  498,  37  L.  Ed.  345. 

§  r,o.     i  (D.  C)  C3  Fed.  Ml. 


104  BOTTOMRY    AND    RESPONDENTIA.  (Ch.    4 

row  held  that,  though  domestic  Hens  were  generally  similar 
to  foreign  liens,  this  principle  did  not  apply  to  liens  in  the 
home  port,  as  it  would  defeat  the  lien  entirely.  This  same 
doctrine  was  held  by  Judge  Hanford  in  the  case  of  McRae 
v.  Bowers  Dredging  Co. ; 2  and,  in  the  still  later  case  of  The 
Iris,3  Judge  Putnam,  speaking  for  the  circuit  court  of  ap- 
peals of  the  First  circuit,  held  that  a  lien  existed  by  virtue 
of  the  Massachusetts  statute,  even  though  there  was  no  ex- 
press understanding  for  a  lien. 

But,  notwithstanding  this  respectable  and  formidable  ar- 
ray of  authority,  the  better  doctrine  would  seem  to  be  that 
as  to  domestic  liens  also,  where  the  contract  was  made  with 
the  owner,  or  with  the  master  when  the  owner  was  present 
or  easily  accessible,  there  should  not  be  a  lien  without  some 
understanding  beyond  the  mere  fact  of  ordering  the  supplies. 

It  is  unfortunate  that  there  should  have  ever  been  any  dis- 
tinction between  domestic  and  foreign  liens  at  all,  and  it  is 
equally  desirable  that  no  unnecessary  distinctions  should  be 
created  between  them.  It  is  not  a  hard  thing  to  have  such 
an  understanding  if  the  mechanic  wishes  to  protect  himself. 
It  is  at  best  frequently  a  hardship  to  enforce  these  liens  as 
against  third  parties,  and  it  is  believed  that  in  general  jus- 
tice will  better  be  done  by  having  domestic  and  foreign  liens 
as  similar  as  possible. 

This  question  came  up  in  the  case  of  The  Samuel  Mar- 
shall,4 where  Judge  Taft,  speaking  for  the  circuit  court  of 
appeals  of  the  Sixth  circuit,  refused  to  enforce  such  a  lien 
in  the  absence  of  some  understanding,  although  the  lan- 
guage of  the  Michigan  statute  was  amply  broad  to  have 
given  it.  He  very  aptly  says,  in  speaking  of  these  very  gen- 
erally and  vaguely  worded  statutes,  that  the  character  of  the 
lien  created  was  presumably  intended  to  be  such  that  a  res- 

s  (C.  C.)  86  Fed.  344. 

«  40  C.  C.  A.  301,  100  Fed.  104. 

«  4  C.  C.  A.  385,  51  Fed.  396. 


§    50)  SUPPLIES,   REPAIRS,   AND    OTHER    NECESSARIES.  105 

ident  of  the  home  port  of  the  vessel  would  be  put  on  an 
equality  in  respect  to  the  lien  to  be  secured  with  the  citizens 
of  a  foreign  state ;  that  they  were  providing  a  maritime  lien, 
and  intended  that  it  should  have  the  peculiar  characteristics 
of  a  maritime  lien.  He  quotes  with  approval  the  decision 
of  Mr.  Justice  Matthews  and  Judge  Baxter  in  The  Guiding 
Star.6  In  the  case  of  The  Electron,6  Judge  Shipman,  speak- 
ing for  the  circuit  court  of  appeals  of  the  Second  circuit, 
held  the  same  way. 

In  fact,  this  seems  to  follow  necessarily  from  the  decision 
of  the  supreme  court  in  the  case  of  The  Kate.7  There  the 
New  York  statute  which  was  before  the  court  used  very 
general  language,  which,  literally  construed,  would  have 
created  a  lien  when  ordered  by  anybody,  even  a  charterer. 
The  district  court  had  held  that  the  New  York  statute,  in 
spite  of  this  general  language,  presupposed  some  express  or 
implied  authority,  and  that  the  statute,  literally  construed, 
would  be  unconstitutional.  The  supreme  court,  without 
passing  upon  the  constitutional  question,  held  that  such  a 
statute  could  not  be  so  widely  construed,  and  it  refused  to 
sustain  a  lien  created  by  the  charterer,  in  spite  of  the  general 
language  of  the  statute. 

At  one  time  it  was  thought  that,  among  admiralty  claims 
of  otherwise  equal  dignity,  the  one  first  asserted  by  libel 
would  be  paid  in  preference  to  the  others,  but  the  later  au- 
thorities have  settled  that  the  prior  petens  gains  nothing  by 
his  diligence.8 

6  (C.  C.)  18  Fed.  263. 

•  21  C.  C.  A.  12,  74  Fed.  689. 

1  164  U.  S.  458,  17  Sup.  Ot.  135,  41  L.  Ed.  512. 

•  Saylor  v.  Taylor,  23  C.  C.  A.  343.  77  Fed.  476,  post  p.  351. 


106  BOTTOMRY    AND    RESPONDENTIA.  (Ch.   4 


SAME— SHIPBUILDING  CONTRACTS. 

51.  A  contract  for  building  a  ship  is  not  maritime, 
and  hence  cannot  be  enforced  in  the  admir- 
alty, nor  can  it  be  made  so  by  a  state  stat- 
ute. Such  a  statute,  however,  can  give  a 
remedy  to  the  state  courts  for  its  enforce- 
ment. 

It  will  be  observed  that  the  theory  on  which  these  state 
liens  are  enforced  is  that  they  are  maritime  in  their  nature. 
But  a  state  cannot  make  a  contract  maritime  which  is  not  in 
its  nature  maritime,  nor  attach  a  maritime  lien  to  a  non- 
maritime  cause  of  action.  For  this  reason  a  state  statute 
cannot  create  a  right  to  proceed  in  the  admiralty  to  enforce 
a  contract  for  building  a  ship,  as  the  courts  have  held  these 
contracts  not  marine  in  their  nature.  This  was  first  decided 
by  the  supreme  court  in  the  case  of  People's  Ferry  Co.  of 
Boston  v.  Beers.1  The  ground  of  the  decision  is  that  such 
contracts  have  no  reference  to  any  voyage,  that  the  vessel  is 
then  neither  registered  nor  licensed  as  a  seagoing  ship,  that 
it  is  a  contract  made  on  land  to  be  performed  on  land,  and 
therefore  nonmaritime. 

This  decision  was  during  a  period  when  the  supreme  court 
was  leaning  against  the  extension  of  admiralty  jurisdiction. 
It  has  long  repudiated  any  dependence  on  the  commerce 
clause  for  admiralty  jurisdiction.2  And  the  argument  that  it 
was  made  on  land,  to  be  performed  on  land,  smacks  of  the 
most  bigoted  period  of  English  common-law  jealousy.  It  is 
a  test  no  longer  insisted  on ;  for  it  would  debar  from  the 
admiralty  courts  all  coppering,  painting,  or  calking  on  ma- 
rine railways  or  in  dry  docks,  and  even  salvage  contracts  to 
float  a  stranded  vessel. 

§  51.     i  20  How.  393,  15  L.  Ed.  061. 

2  EX  PARTE  GARNETT,  141  U.  S.  1,  11  Sup.  Ct.  840,  35  L.  Ed.  631. 


§    51)  SUPPLIES,   REPAIRS,   AND    OTHER    NECESSARIES. 


107 


A  shipbuilding  contract  is  not  entirely  to  be  performed  on 
land.  Graceful  as  a  ship  may  be  when  she  first  floats  upon 
her  destined  element,  she  is  a  mere  hulk.  Her  masts,  her 
sails,  her  anchors,  and  general  outfit  are  all  added  after  she 
is  afloat.  It  might  as  well  be  said  that  a  bill  of  lading  signed 
in  an  agent's  office,  and  representing  cotton  alongside  a  ship 
in  the  sheds  subject  to  her  order,  is  a  contract  made  on  land, 
to  be  performed  on  land.  Under  the  general  maritime  law, 
shipbuilding  contracts  were  maritime.3 

But,  however  it  may  be  on  principle,  the  law  is  settled  that 
such  contracts  are  not  maritime  in  their  character.  This  be- 
ing so,  it  necessarily  followed  that  a  state  statute  could  not 
make  them  maritime,  and  so  the  court  soon  held.4 

As  the  limitation  upon  these  statutes  is  simply  that  they 
shall  not  interfere  with  the  exclusive  jurisdiction  of  the  ad- 
miralty, it  follows  that  any  lien  or  special  process  given  to 
enforce  any  nonmaritime  right  is  valid;  and  therefore  the 
supreme  court  has  upheld  a  special  remedy  conferred  by  a 
state  statute  upon  a  state  court  to  enforce  a  shipbuilding 
contract,  for  the  very  reason  that  it  is  not  maritime.6 

The  Virginia  statute  on  this  subject  is  found  in  section 
2963  of  the  Code,  and  reads  as  follows :  "If  any  person  has 
any  claim  against  the  master  or  owner  of  any  steamboat  or 
other  vessel,  raft  or  river  craft,  or  against  any  steamboat  or 
vessel,  raft  or  river  craft,  found  within  the  jurisdiction  of 
this  state,  for  materials  or  supplies  furnished  or  provided,  or 
for  work  done  for,  in,  or  upon  the  same,  or  for  wharfage, 
salvage,  pilotage,  or  for  any  contract  for  transportation  of, 
or  any  injury  done  to  any  person  or  property  by  such  steam- 
boat or  other  vessel,  raft,  or  river  craft,  or  by  any  person 
having  charge  of  her,  or  in  her  employment,  such  person 
shall  have  a  lien  upon  such  steamboat  or  other  vessel,  raft, 
or  river  craft,  for  such  materials  or  supplies  furnished,  work 

8  Ben.  Adrn.  §  204. 

4  Roach  v.  Chapman,  22  How.  129.  16  L.  Ed.  291. 

c  Edwards  v.  Elliott,  21  Wall.  532.  22  L.  Ed.  487. 


108  BOTTOMRY    AND    RESPONDENTIA.  (Ch.   4 

done,  or  services  rendered,  wharfage,  salvage,  pilotage,  and 
for  such  contract  or  injury  as  aforesaid;  and  may,  in  a  pend- 
ing suit,  sue  out  of  the  clerk's  office  of  the  circuit  court  of 
the  county,  or  in  the  circuit  or  corporation  court  of  the  cor- 
poration, in  which  such  steamboat  or  other  vessel,  raft  or 
river  craft,  may  be  found,  an  attachment  against  such  steam- 
boat or  other  vessel,  raft,  or  river  craft,  with  all  her  tackle, 
apparel,  furniture,  and  appurtenances,  or  against  the  estate 
of  such  master  or  owner.  Any  attachment  may  be  sued  out 
under  this  section  for  a  cause  of  action  that  may  have  arisen 
without  the  jurisdiction  of  this  state,  as  well  as  within  it,  if 
the  steamboat  or  other  vessel,  raft,  or  river  crait,  be  within 
the  jurisdiction  of  this  state  at  the  time  the  attachment  is 
sued  out  or  executed." 

This  is  one  of  the  sections  in  the  chapter  regulating  at- 
tachments. As  it  does  not  provide  a  proceeding  in  rem,  but 
merely  an  attachment  in  a  "pending  suit"  against  the  owner, 
a  proceeding  under  it  in  the  state  courts,  even  on  a  maritime 
cause  of  action,  could  be  sustained. 

SAME— VESSELS  AFFECTED  BY  STATE  STATUTES. 

63.  The  better  opinion  is  that  state  statutes  create 
this  lien  only  on  domestic  vessels,  and  that 
the  rights  of  material  men  against  foreign 
vessels  depend  upon  the  general  maritime 
law. 

As  stated  above,  the  distinction  between  supplies  furnished 
to  domestic  vessels  and  to  foreign  vessels  is  largely  artificial, 
and  it  is  to  be  regretted  that  it  was  ever  made.  The  sym- 
metry of  marine  law  requires  that  the  general  doctrine  be 
modified  as  little  as  possible.  If  state  statutes  can  regulate 
not  only  claims  against  domestic  vessels,  but  against  foreign 
vessels,  they  can  add  liens  to  maritime  causes  of  action  that 
did  not  exist  before,  and  take  them  away  where  they  did 


§    52)         SUPPLIES,  REPAIRS,   AND    OTHER    NECESSARIES.  109 

exist.     Consequently,  a  foreign  vessel  would  find  a  different 
law  in  every  port.     It  would  certainly  seem  more  consistent 
with  principle  to  hold,  as  is  historically  true,  that  the  sole 
purpose  and  object  of  these  state  laws  were  to  put  domestic 
vessels  on  the  same  footing  as  foreign  vessels.     The  con- 
verse of  this,  that  they  can  reduce  foreign  vessels  to  the 
basis  of  domestic  vessels,  would  be  a  great  anomaly.     Ac- 
cordingly, the  best-considered  decisions  have  held  that  the 
maritime  rights  of  foreign  vessels  are  independent  of  these 
state  statutes  (as  an  attempt  to  regulate  them  would  be  to 
interfere  with  the  general  admiralty  jurisdiction),  and  that 
these  statutes  regulate  only  rights  against  domestic  vessels. 
The  leading  case  on  the  subject  is  THE  CHUSAN.1     In 
it  Mr.  Justice  Story  says:     "The  statute  is,  as  I  conceive, 
perfectly  constitutional  as  applied  to  cases  of  repairs  of  do- 
mestic ships ;    that  is,  of  ships  belonging  to  ports  of  that 
state.     And  if  the  present  were  the  case  of  materials  and 
supplies  furnished  to  a  ship  belonging  to  New  York,  and 
the  lien  were  sought  to  be  enforced  in  the  admiralty  courts 
of  the  United  States,  I  should  have  no  doubt  that  the  lien 
created  by  the  law  of  that  state,  and  not  existing  by  the  gen- 
eral maritime  law,  must  be  governed  throughout  by  the  law 
of  that  state,  and  that,  when  the  ship  left  the  state,  it  should 
cease.     But  in  cases  of  foreign  ships,  and  the  supplies  fur- 
nished to  them,  the  jurisdiction  of  the  courts  of  the  United 
States  is  given  by  the  constitution  and  laws  of  the  United 
States,  and  is  in  no  sense  governed,  controlled,  or  limited  by 
the  local  legislation  of  the  respective  states.     The  constitu- 
tion of  the  United  States  has  declared  that  the  judicial  power 
of  the  national  government  shall  extend  to  all  cases  of  ad- 
miralty and  maritime  jurisdiction ;    and  it  is  not  competent 
for  the  states,  by  any  local  legislation,  to  enlarge,  or  limit, 
or  narrow  it.     In  the  exercise  of  this  admiralty  and  maritime 
jurisdiction,  the  courts  of  the  United  States  are  exclusively 

§  52.     i2  Story,  455,  Fed.  Cas.  No.  2,717. 


110  BOTTOMRY    AND    RESPONDENTIA.  (Ch.*4 

governed  by  the  legislation  of  congress,  and,  in  the  absence 
thereof,  by  the  general  principles  of  the  maritime  law.  The 
states  have  no  right  to  prescribe  the  rules  by  which  the 
courts  of  the  United  States  shall  act,  nor  the  jurisprudence 
which  they  shall  administer.  If  any  other  doctrine  were  es- 
tablished, it  would  amount  to  a  complete  surrender  of  the 
jurisdiction  of  the  courts  of  the  United  States  to  the  fluctu- 
ating policy  and  legislation  of  the  states.  If  the  latter  have 
a  right  to  prescribe  any  rule,  they  have  the  right  to  pre- 
scribe all  rules,  to  limit,  control,  or  bar  suits  in  the  national 
courts.  Such  a  doctrine  has  never  been  supported,  nor  has 
it  for  a  moment  been  supposed  to  exist,  at  least,  as  far  as  I 
have  any  knowledge,  either  by  any  state  court,  or  national 
court,  within  the  whole  Union.  *  *  *  Suppose  a  state 
legislature  should  declare  that  there  should  in  future  be  no 
lien  of  seamen  for  their  wages,  on  any  ship,  foreign  or  do- 
mestic, or  no  lien  for  salvage  on  any  ship,  foreign  or  do- 
mestic; and  no  lien  for  any  bottomry  on  a  ship,  foreign  or 
domestic ;  will  it  be  pretended  that  such  a  law  would  be  ob- 
ligatory upon  the  courts  of  the  United  States  in  the  exercise 
of  admiralty  and  maritime  jurisdiction?  If  it  would  be,  a 
more  forcible  and  complete  device  to  dry  up  and  extinguish 
the  jurisdiction  of  the  courts  of  the  United  States  in  ad- 
miralty cases  could  scarcely  be  imagined.  The  truth  is,  that 
the  admiralty  and  maritime  jurisdiction  of  the  courts  of  the 
United  States,  given  by  the  constitution,  covers  not  merely 
the  cognizance  of  the  case,  but  the  jurisdiction  and  princi- 
ples by  which  it  is  to  be  administered.  It  covers  the  whole 
maritime  law  applicable  to  the  case  in  judgment,  without  the 
slightest  dependence  upon  or  connection  with  the  local  ju- 
risprudence of  the  state  on  the  same  subject.  The  subject- 
matter  of  admiralty  and  maritime  law  is  withdrawn  from 
state  legislation,  and  belongs  exclusively  to  the  national  gov- 
ernment and  its  proper  functionaries.  Besides,  by  the  con- 
stitution of  the  United  States,  congress  has  the  power  to 
regulate  commerce  with  foreign  nations  and  among  the  sev- 


§    52)  SUPPLIES,   REPAIRS,  AND   OTHER    NECESSARIES.  Ill 

eral  states.  The  power  to  regulate  commerce  includes  the 
power  to  regulate  navigation  with  foreign  powers  and  among 
the  states,  and  it  is  an  exclusive  power  in  congress." 

This  has  been  followed  by  Judge  Brown  in  The  Lynd- 
hurst,2  and  by  the  circuit  court  of  appeals  for  the  Second 
circuit  in  The  Electron.3 

On  the  other  hand,  Judge  Hanford,  in  an  equity  case  in 
the  circuit  court,4  where  he  was  marshaling  various  assets 
of  an  insolvent  corporation,  held  that  the  statute  of  Wash- 
ington applied  to  foreign,  as  well  as  domestic,  vessels.  And 
in  the  later  case  of  The  Del  Norte  B  he  held  that  state  stat- 
utes could  create  such  liens  even  on  foreign  vessels,  as  the 
contract  was  one  within  the  state,  and  was  governed  by  the 
lex  loci  contractus. 

It  is,  of  course,  true  that  a  state  statute  can  regulate  the 
general  course  of  transactions  between  the  parties  within  the 
limits  of  the  state,  but  it  must  do  so  subject  to  constitutional 
provisions.  To  illustrate  this  more  clearly,  such  a  statute 
can  create  a  lien  against  a  vessel  for  building  within  the 
state,  as  that  is  a  matter  for  the  lex  loci  contractus,  but  it 
cannot  go  a  step  further,  and  make  that  an  admiralty  lien. 
So  it  may  regulate  the  evidence  required  to  prove  such 
claims,  but  all  of  its  legislation  sustainable  on  this  ground 
must  still  be  subject  to  the  federal  constitution,  which  con- 
fers admiralty  jurisdiction  upon  the  federal  courts  alone. 
To  say  that  a  state  legislature  can  pass  a  statute  regulating 
liens  upon  foreign  vessels  is  to  say  that  it  can  defeat  them 
or  add  to  them  at  pleasure,  so  long  as  the  subjects  are  mar- 
itime in  their  character.  As  Mr.  Justice  Story  has  well  said 
in  THE  CHUSAN,  the  consequence  of  this  would  be  to 
place  the  admiralty  jurisdiction  entirely  at  the  mercy  of  the 
state  statutes,  and  it  is  believed  that,  when  the  question  is 

2  (D.  C.)  48  Fed.  839. 

»  21  C.  C.  A.  12,  74  Fed.  6S9. 

*  McKae  v.  Dredging  Co.  (C.  C.)  86  Fed.  344. 

e  (D.  U.)  90  Fed.  506. 


112  BOTTOMRY    AND    RESPONDENTIA.  (Cll.*4 

presented  to  the  supreme  court  in  such  manner  as  to  render 
its  decision  necessary,  it  will  hold  that  these  statutes  only  ap- 
ply to  the  rights  of  material  men  against  domestic  vessels. 
In  the  case  of  The  Kate,8  the  court  was  confronted  with  this 
question,  but  did  not  decide  it,  as  the  case  went  off  on  an- 
other ground. 

The  reasoning  of  the  court  on  a  somewhat  similar  ques- 
tion, in  the  case  of  Workman  v.  City  of  New  York,7  forci- 
bly shows  the  inconvenience  and  danger  of  the  doctrine  that 
state  statutes  can  control  the  general  maritime  law,  though 
the  case  is  not  sufficiently  in  point  to  settle  the  question. 

«  164.  U.  S.  458,  17  Sup.  Ct.  135,  41  L.  Ed.  512. 
!» 179  U.  S.  552,  21  Sup.  Ct.  212,  45  L.  Ed.  314. 


§  54)  stevedores'  contracts,  etc.  1]3 


CHAPTER  V. 

OF  STEVEDORES'  CONTRACTS,  CANAL  TOLLS,  AND  TOWAGE 
CONTRACTS. 

53.  Stevedores'  Contracts— "Stevedore"  Defined. 

54.  Maritime  Character  of  Contracts,  and  Liens  on  Foreign 

and  Domestic  Vessels. 
65.  Privity  of  Contract  Necessary  to  Lien. 

56.  Canal  Tolls. 

57.  Towage — "Service"  Defined. 

56,  59.  Responsibility  as  between  Tug  and  Tow. 

60.  Degree  of  Care  Required  of  Tug. 

61.  For  Whose  Acts  Tug  or  Tow  Liable. 


STEVEDORES'  CONTRACTS—"  STEVEDORE" 
DEFINED. 

53.  A  stevedore  is  a  workman  or  contractor  who 
loads  or  discharges  a  ship  and  properly 
stows  her  cargo. 

SAME— MARITIME  CHARACTER  OF  CONTRACTS, 
AND  LIENS  ON  FOREIGN  AND  DO- 
MESTIC VESSELS. 

64.  A  contract  for  such  service  is  maritime,  and 
gives  a  lien  certainly  on  foreign  vessels, 
certainly  on  domestic  vessels  where  a  state 
statute  gives  it,  and  probably  on  domestic 
vessels  even  in  the  absence  of  a  state  stat- 
ute. 

The  services  of  a  stevedore  are  essential  to  the  financial 
success  of  a  ship.  The  modern  ship  is  intricate  and  compli- 
cated in  her  cargo  spaces,  and  it  requires  the  skill  of  an 

HUGHES.AD.— 8 


114  stevedores'  contracts,  etc.  (Ch.  *5 

expert  to  load  her  to  advantage.  He  must  not  only  know 
how  best  to  stow  the  cargo  without  loss  of  space,  but  also 
how  to  arrange  it  so  as  to  trim  her  properly,  putting  the 
heavy  nearest  the  bottom  so  as  not  to  make  her  crank ;  and 
he  must  work  with  rapidity,  for  the  demurrage  of  large  ves- 
sels amounts  to  hundreds  of  dollars  a  day,  and  every  delay 
means  heavy  loss.  In  view  of  the  narrow  margin  on  which 
business  is  conducted  nowadays,  the  proper  stowage  of  the 
cargo  makes  all  the  difference  between  a  profit  and  a  loss. 

In  view  of  the  importance  of  these  services,  it  is  difficult 
to  understand  how  its  maritime  character  could  ever  have 
been  questioned,  yet  until  recently  the  preponderance  of 
authority  was  against  it.  The  probable  explanation  is  that, 
when  vessels  were  small,  no  great  skill  was  required,  and 
the  loading  was  mainly  done  by  the  crew  themselves. 

In  The  Amstel,1  Judge  Betts  denied  the  maritime  char- 
acter of  the  service  on  the  ground  that  it  was  partly  to  be 
performed  on  land,  and  was  no  more  connected  with  the 
good  of  the  vessel  than  a  man  who  hauls  goods  to  the  wharf, 
and  many  cases  follow  this  decision  without  question. 

But  it  has  already  been  seen  that  in  matters  of  contract 
the  test  is  the  character  of  the  service,  and  not  its  locality. 
Accordingly,  in  THE  GEORGE  T.  KEMP,2  Judge  Lowell 
held  that  such  services  were  maritime,  and  gave  the  steve- 
dore a  right  to  hold  the  vessel  itself,  at  least  if  she  was  a 
foreign  vessel,  and  this  has  been  followed  in  many  later 
cases. 

A  large  number  of  these  cases  hold  that,  although  the 
service  is  maritime,  the  stevedore  has  his  remedy  in  rem 
only  against  a  foreign  ship,  or  against  a  domestic  ship  where 
there  is  a  state  statute  giving  it.  A  typical  case  drawing 
this  distinction  is  The  Gilbert  Knapp.8     It  is  a  good  illus- 

§§  53-54.     1 1  Blatchf.  &  H.  215,  Fed.  Cas.  No.  339. 
2  Fed.  Cas.  No.  5,341. 
•  (D.  0.)  37  Fed.  209. 


§  55)  stevedores'  contracts.  115 

tration  of  the  confusion  caused  in  marine  law  by  the  distinc- 
tion drawn  between  foreign  and  domestic  vessels  in  con- 
nection with  the  doctrine  of  the  rights  of  material  men. 
The  cases  which  hold  that  a  stevedore  has  no  lien  upon  a 
domestic  vessel  compare  his  work  and  character  to  that  of 
a  material  man  and  follow  those  analogies.  Most  of  these 
cases,  when  examined,  will  appear  to  be  cases  where  the 
vessel  actually  was  a  foreign  vessel,  and  where  this  qualifica- 
tion was  put  in  by  the  judge,  not  as  a  decision,  but  merely 
as  a  cautious  reservation  which  might  protect  him  in  fu- 
ture.* 

But  the  better  opinion  would  seem  to  be  that  a  stevedore 
is  more  like  a  sailor  than  a  material  man.  The  duties  now 
performed  by  him  under  modern  demands  are  the  same  a 
those  that  sailors  used  to  perform.  No  one  has  ever  sup- 
posed that  a  sailor  had  no  lien  on  a  vessel  unless  given  by 
a  state  statute,  and  it  is  difficult  to  see  why  this  distinction 
should  be  dragged  in  as  against  a  stevedore.  Accordingly, 
in  THE  SEGURANCA,5  Judge  Brown  reviews  this  ques 
tion,  holds  that  a  stevedore  is  more  like  a  sailor  than  he  is 
like  a  material  man,  and  decides  that  he  ought  to  have  a 
lien  even  in  the  home  port,  just  as  a  sailor  would  have. 

SAME— PRIVITY  OF  CONTRACT  NECESSARY 
TO  LIEN. 

65.  This  being  a  lien  arising  from  contract,  only 
those  are  entitled  to  it  who  have  a  contract 
with  the  vessel. 

It  is  not  at  all  like  a  subcontractor's  lien  under  a  stat« 
mechanic's  lien  law.    Hence,  if  a  vessel  employs  a  stevedore 

*  See,  as  illustrations,  The  Main,  2  0.  C.  A.  569,  51  Fed.  954;  Nor- 
Weglan  S.  S.  Co.  v.  Washington,  6  a  C.  A.  313,  57  Fed.  224;  The 
Scotia  (D.  C.)  35  Fed.  916. 

•  (D.  C.)  58  Fed.  908. 


116  stevedores'  contracts,  etc.  (Ch.  5 

to  load  her,  he  would  have  a  Hen,  but  the  workmen  em- 
ployed by  him  would  not,  for  their  contract  would  be  with 
him,  and  not  with  the  vessel.  So  if  a  vessel  comes  under  r 
charter  party,  by  which  the  charterer  is  to  load  her  and  pay 
a  lump  sum  for  her  use,  it  is  no  interest  of  the  vessel  whether 
the  charterer  loads  her  or  not.  If  he  does  not,  he  will  have 
to  pay  the  charter  price  for  her  use  just  the  same,  and  no 
loss  would  be  entailed  upon  the  vessel,  as  she  would  get 
dead  freight.  In  such  case,  the  charterer  would  be  an  inde- 
pendent contractor,  and,  if  he  employs  a  stevedore,  the 
latter  would  have  no  contract  with  the  vessel  itself,  anc1 
would  have  to  look  to  him.  On  principle,  this  doctrine  is 
very  clear.  The  only  confusion  which  has  arisen  under  it 
at  all  is  that  frequently  the  charterer  is  not  only  charterer, 
but  agent  of  the  vessel,  having  authority  from  the  vessel 
If  the  stevedore  deals  with  him  in  that  capacity,  and  does 
not  know  the  limitations  of  his  power,  or  is  not  so  put  upon 
inquiry  as  to  charge  him  with  knowledge,  it  may  sometimes 
be  the  case  that  the  vessel  will  be  bound,  but  the  natural 
presumption  would  be  the  other  way.1 

The  relation  between  the  stevedore  and  ship  is  but  a 
branch  of  the  general  law  of  master  and  servant,  and  is  for- 
eign to  the  present  subject.  He  is  so  far  the  agent  of  the 
ship  as  to  bind  the  ship  by  his  acts,  even  when  the  charter 
party  expressly  requires  the  ship  to  employ  the  charterer's 
stevedore,  as  is  frequently  the  case.2 

CANAL  TOLLS. 

56.  Tolls  due  by  a  vessel  for  use  of  a  canal  are  a 
maritime  contract,  and,  if  a  lien  is  given  by 
state  statute,  it  can  be  enforced  by  a  libel  in 

§  55.  !  That  some  privity  must  be  shown  in  order  to  sustain  right 
of  action  against  the  vessel,  see  The  Hattie  M.  Bain  (D.  C.)  20  Fed. 
889;  The  Mark  Lane  (D.  C.)  13  Fed.  S0O. 

2  The  T.  A.  Goddard  (D.  C.)  12  Fed.  174. 


§    57)  TOWAGE.  117 

rem  in  admiralty  against  a  domestic  vessel, 
and  it  can  be  enforced  against  a  foreign 
vessel  independent  of  any  statute. 

In  the  case  of  The  St.  Joseph,1  a  corporation  was  author- 
ized by  its  charter  to  improve  a  navigable  stream  and  charge 
for  the  use  of  the  same,  and  the  charter,  which  was  a  public 
one  granted  by  act  of  the  legislature,  made  these  tolls  r 
lien  in  rem  upon  the  vessel.  The  court  held  that  the  con- 
tract was  maritime,  and  could  be  enforced  in  admiralty 
against  the  vessel. 

In  the  case  of  The  Bob  Connell,2  the  court  held  that  a 
service  of  this  sort  was  maritime,  likened  it  to  the  lien  of  a 
material  man,  and  held  that  it  could  be  enforced  against  a 
domestic  vessel  if  there  was  a  state  statute,  and  not  if 
there  was  no  statute. 

In  both  these  cases,  therefore,  the  question  of  the  state 
statute  was  necessarily  involved.  Under  the  principles  al- 
ready discussed,  it  would  seem  clear  that,  even  if  there  was 
no  statute,  such  a  claim  could  be  enforced  against  a  foreign 
vessel. 

TOWAGE—"  SERVICE  "  DEFINED. 

67.  Towage  is  a  service  rendered  in  the  propulsion 
of  uninjured  vessels  under  ordinary  circum- 
stances of  navigation,  irrespective  of  any  un- 
usual peril. 

Of  recent  years  this  has  become  a  topic  of  steadily  in- 
creasing importance.  The  saving  of  time  and  diminution  of 
risk  accomplished  by  the  use  of  tugboats  has  caused  every 
harbor  to  be  thronged  with  them,  from  the  wheezing  little 
high-pressure  tugboat  that  pulls  watermelon  sloops  and 
oyster  pungies,  to  the  magnificent  ocean-going  triple  expan- 

S  5»J.     i  Fed.  Cas.  No.  12,230.  2  (fj.  C.)  1  Fed.  21S. 


1  IS  STEVEDORES'    CONTRACTS,  ETC.  (Ch.    5 

sion  tugs,  equipped  with  machinery,  bitts,  and  hawsers 
strong  enough  to  tow  a  fleet.  Their  services  are  not  limited 
to  towing  sail  vessels,  but  in  contracted  harbors  the  long, 
narrow  modern  steamers,  in  turning  or  docking,  do  not  dis- 
dain their  aid. 

It  is  often  hard  to  draw  the  line  between  a  towage  and  a 
salvage  service.  As  near  as  it  can  be  drawn,  the  distinction 
would  seem  to  be  that  when  a  tug  is  taken  by  a  sound  ves- 
sel, as  a  mere  means  of  saving  time  or  from  considerations 
of  convenience,  the  service  would  be  classed  as  towage,  while 
if  the  vessel  is  in  any  way  disabled  and  in  need  of  assistance, 
to  escape  actual  or  possible  risk  the  service  is  a  salvage 
service,  of  a  high  or  low  merit  according  to  the  special  cir- 
cumstances.* 

Indeed,  a  service  may  start  as  towage  and  end  as  salvage. 
For  instance,  a  tug  starts  to  tow  a  vessel  from  one  point  to 
another  under  contract  for  a  certain  sum.  The  towage  con- 
tract is  presumed  to  cover  only  the  ordinary  incidents  of  the 
voyage.  If  a  tempest  arises  of  sufficient  severity  to  greatly 
endanger  or  to  disable  the  tow,  the  towage  contract  is  ab- 
rogated by  the  vis  major,  and  the  tug  may  claim  salvage, 
provided,  of  course,  she  has  not  been  negligent  in  unneces- 
sarily exposing  her  tow,  or  bringing  about  the  dangerous 
situation.1 

§  57.  *  See  the  following  cases  for  the  distinction  between  tow- 
age and  salvage:  The  Reward,  1  W.  Rob.  174;  The  Princess  Alice, 
3  W.  Rob.  138;  The  Emily  B.  Souder,  15  Blatchf.  185,  Fed.  Cas. 
No.  4,458;  The  J.  C.  Pfluger  (D.  C.)  109  Fed.  93. 

iThe  H.  B.  Foster,  Fed.  Cas.  No.  6,290;  The  Minnehaha,  Lush. 
335;   The  Madras  [1898]  Prob.  Div.  90. 


§§  58-59)  TOWAGE.  119 

SAME— RESPONSIBILITY  AS  BETWEEN  TUG  AND 

TOW. 

68.  The  tow  is  not  liable  for  the  tug's  acts  where 
the  latter  directs  the  navigation. 

59.  It  is  liable  for  its  own  negligence,  and  may  be 
for  the  tug's,  where  it  directs  the  navigation. 

The  relation  between  tug  and  tow,  under  the  American 
decisions,  under  ordinary  circumstances,  is  that  of  independ- 
ent contractor,  not  that  of  principal  and  agent.  In  other 
words,  the  tug  is  not  the  servant  or  employe  of  the  tow,  and 
therefore  the  tow  is  not  responsible  for  the  acts  of  the  tug. 
Hence,  if  the  tow  collide  with  some  vessel  during  the  voy- 
age, it  is  not  liable  for  the  damage  caused  thereby,  unless 
some  negligence  contributing  to  the  collision  is  proved 
against  the  tow.  The  law  is  well  summarized  in  the  case  of 
STURGIS  v.  BOYER,1  where  the  court  says:  "Looking 
at  all  the  facts  and  circumstances  of  the  case,  we  think  th£ 
libelants  are  clearly  entitled  to  a  decree  in  their  favor ;  and 
the  only  remaining  question  of  any  importance  is  whether 
the  ship  and  the  steam  tug  are  both  liable  for  the  conse- 
quences of  the  collision,  or,  if  not,  which  of  the  two  ought  to 
be  held  responsible  for  the  damage  sustained  by  the  libel- 
ants. Cases  arise,  undoubtedly,  when  both  the  tow  and  the 
tug  are  jointly  liable  for  the  consequences  of  a  collision ;  as 
when  those  in  charge  of  the  respective  vessels  jointly  par- 
ticipate in  their  control  and  management,  and  the  master  or 
crew  of  both  vessels  are  either  deficient  in  skill,  omit  to  take 
due  care,  or  are  guilty  of  negligence  in  their  navigation. 
Other  cases  may  well  be  imagined  when  the  tow  alone  would 
be  responsible,  as  when  the  tug  is  employed  by  the  master 
or  owner  of  the  tow  as  the  mere  motive  power  to  propel 

§§  58-59.     i  24  How.  110,  16  L.  Ed.  591.     See,  also,  The  Clarita,  23 
Wall.  1,  23  L.  Ed.  146. 


120  stevedores'  contracts,  etc.  (Ch.  5 

their  vessels  from  one  point  to  another,  and  both  vessels  are 
exclusively  under  the  control,  direction,  and  management  of 
the  master  and  crew  of  the  tow.  Fault  in  that  state  of  the 
case  cannot  be  imputed  to  the  tug,  provided  she  was  prop- 
erly equipped  and  seaworthy  for  the  business  in  which  she 
was  engaged ;  and,  if  she  was  the  property  of  third  persons, 
her  owners  cannot  be  held  responsible  for  the  want  of  skill, 
negligence,  or  mismanagement  of  the  master  and  crew  of 
the  other  vessel,  for  the  reason  that  they  are  not  the  agents 
of  the  owners  of  the  tug,  and  her  owners  in  the  case  sup- 
posed do  not  sustain  towards  those  intrusted  with  the  nav- 
igation of  the  vessel  the  relation  of  the  principal.  But  when- 
ever the  tug,  under  the  charge  of  her  own  master  and  crew, 
and  in  the  usual  and  ordinary  course  of  such  an  employ- 
ment, undertakes  to  transport  another  vessel,  which,  for  the 
time  being,  has  neither  her  master  nor  crew  on  board,  from 
one  point  to  another,  over  waters  where  such  accessory  mo- 
tive power  is  necessary  or  usually  employed,  she  must  be 
held  responsible  for  the  proper  navigation  of  both  vessels ; 
and  third  persons,  suffering  damages  through  the  fault  of 
those  in  charge  of  the  vessel,  must,  under  such  circumstan- 
ces, look  to  the  tug,  her  master  or  owners,  for  the  recom- 
pense which  they  are  entitled  to  claim  for  any  injuries  that 
vessels  or  cargo  may  receive  by  such  means.  Assuming 
that  the  tug  is  a  suitable  vessel,  properly  manned  and  equip- 
ped for  the  undertaking,  so  that  no  degree  of  negligence  can 
attach  to  the  owners  of  the  tow,  on  the  ground  that  the  mo- 
tive power  employed  by  them  was  in  an  unseaworthy  con- 
dition, and  the  tow,  under  the  circumstances  supposed,  is  no 
more  responsible  for  the  consequences  of  a  collision  than  so 
much  freight ;  and  it  is  not  perceived  that  it  can  make  any 
difference  in  that  behalf  that  a  part,  or  even  the  whole,  of 
the  officers  and  crew  of  the  tow  are  on  board,  provided  it 
clearly  appears  that  the  tug  was  a  seaworthy  vessel,  prop- 
erly manned  and  equipped  for  the  enterprise,  and  from  the 
nature  of  the  undertaking,  and  the  usual  course  of  conduct- 


§§    58-59)  TOW  AG  K.  121 

ing  it,  the  master  and  crew  of  the  tow  were  not  expected  to 
participate  in  the  navigation  of  the  vessel,  and  were  not 
guilty  of  any  negligence  or  omission  of  duty  by  refraining 
from  such  participation.  Vessels  engaged  in  commerce  are 
held  liable  for  damage  occasioned  by  collision,  on  account  of 
the  complicity,  direct  or  indirect,  of  their  owners,  or  the 
negligence,  want  of  care  or  skill,  on  the  part  of  those  em- 
ployed in  their  navigation.  Owners  appoint  the  master  and 
employ  the  crew,  and  consequently  are  held  responsible  for 
their  conduct  in  the  management  of  the  vessel.  'When- 
ever, therefore,  a  culpable  fault  is  committed,  whereby  a  col- 
lision ensues,  that  fault  is  imputed  to  the  owners,  and  the 
vessel  is  just  as  much  liable  for  the  consequences  as  if  it  had 
been  committed  by  the  owner  himself.  No  such  consequen- 
ces follow,  however,  when  the  person  committing  the  fault 
does  not,  in  fact,  or  by  implication  of  law,  stand  in  the  re- 
lation of  agent  to  the  owners.  Unless  the  owner  and  the 
person  or  persons  in  charge  of  the  vessel  in  some  way  sus- 
tain towards  each  other  the  relation  of  principal  and  agent, 
the  injured  party  cannot  have  his  remedy  against  the  collid- 
ing vessel.  By  employing  a  tug  to  transport  their  vessel 
from  one  point  to  another,  the  owners  of  the  tow  do  not 
necessarily  constitute  the  master  and  crew  of  the  tug  their 
agents  in  performing  the  service.  They  neither  appoint  the 
master  of  the  tug  or  ship  the  crew,  nor  can  they  displace 
either  the  one  or  the  other.  Their  contract  for  the  service, 
even  though  it  was  negotiated  with  the  master,  is,  in  legal 
contemplation,  made  with  the  owners  of  the  vessel,  and  the 
master  of  the  tug,  notwithstanding  the  contract  was  nego- 
tiated with  him,  continues  to  be  the  agent  of  the  owners  of 
his  own  vessel,  and  they  are  responsible  for  his  acts  in  her 
navigation." 

The  courts  hold  the  relation  between  tug  and  tow  to  re- 
semble that  between  the  hirer  and  driver  of  a  livery-stable 
carriage.     The  hirer  merely  designates  the  destination,  and 


1--  stevedores'  contracts,  etc.  (Ch.  5 

as  the  driver  is  not  employed  or  selected  by  him,  but  by  the 
livery-stable  keeper,  the  hirer  is  not  liable  for  his  acts.2 

The  English  courts  seem  more  inclined  to  regard  the  tug 
as  the  servant  of  the  tow,  and  to  hold  the  tow  liable  for  the 
tug's  negligence.8 

But  the  difference  between  the  American  and  English  de- 
cisions is  more  apparent  than  real.  The  statements  of  facts 
in  the  English  cases  show  that  it  is  a  more  usual  practice  in 
England  to  have  the  master  of  the  tow  direct  the  naviga- 
tion of  both  vessels.  In  such  case,  the  negligence  would 
be  that  of  the  tow  rather  than  the  tug,  and  so  the  English 
courts  have  settled  upon  the  doctrine  that  the  question 
whether  the  tug  is  the  agent  of  the  tow  or  an  independent 
contractor  is  a  question  dependent  upon  the  special  circum- 
stances of  each  case.* 

The  relative  duties  of  tug  and  tow  are  well  explained  in 
the  case  of  DUTTON  v.  THE  EXPRESS.5  If  the  tow  is 
fastened  alongside  the  tug,  and  the  tug  has  full  charge  of 
the  navigation,  then  the  liability  for  a  collision  would  be 
upon  the  tug.  If  the  tow  is  towing  at  the  end  of  a  hawser, 
the  liability  would  be  upon  the  tug  if  the  tow  steered  prop- 
erly, and  would  be  upon  the  tow  if  the  proximate  cause  of 
the  collision  was  wild  steering  on  her  part.  Even  if  she  was 
steering  properly,  and  the  tug  steered  her  right  into  dan- 
ger, she  would  be  responsible  to  the  injured  vessel  if  by 
changing  her  helm  or  taking  any  other  reasonable  precau- 
tions she  could  avoid  the  consequences  of  the  tug's  negli- 
gence, for  it  would  be  her  duty  to  avoid  collision  if  she  could 
do  so.  It  is  also  the  duty  of  the  tow  to  arrange  the  haw- 
ser at  her  end.8 

2  Quarman  v.  Burnett,  6  Mees.  &  W.  499. 
»  The  Niobe,  13  Prob.  Div.  55;  The  Isca,  12  Prob.  Div.  34. 
*  The  Quickstep,  15  Prob.  Div.  196;  The  America,  L.  R.  6  P.  C.  127; 
Smith  v.  Towboat  Co.,  L.  R.  5  P.  C.  308. 
s  3  Cliff.  462,  Fed.  Cas.  No.  4,209. 
«  The  Isaac  H.  Tillyer  (D.  C.)  101  Fed.  478;    The  America,  42  C. 


§    60  TOWAGE.  12< 


SAME— DEGREE  OF  CARE  REQUIRED  OF  TUG. 

60.  A  tugboat  is  not  a  common  carrier,  and  is  lia- 
ble only  for  lack  of  ordinary  care,  as  meas- 
ured by  prudent  men  of  that  profession. 

There  are  some  early  decisions  to  the  effect  that  a  tug 
boat  is  a  common  carrier,  but  the  later  authorities  have  set- 
tled thoroughly  that  it  is  not,  but  only  an  ordinary  bailee, 
liable  for  ordinary  negligence.  It  is  also  settled  that  the 
mere  occurrence  of  an  accident  raises  no  presumption 
against  the  tug,  and  that  the  burden  is  on  the  complaining 
party  to  prove  a  lack  of  ordinary  care.1  At  the  same  time, 
the  ordinary  care  required  of  those  engaged  in  the  profes- 
sion of  towing  is  a  high  one,  for  they  hold  themselves  out  as 
experts.  The  measure  of  care  required  is  similar  to  that 
required  of  pilots.     In  fact,  they  are  pilots.2 

As  an  expert,  a  tugboat  man  must  know  the  channel  and  its 
usual  currents  and  dangers,  and  the  proper  method  of  mak- 
ing up  tows.  He  is  liable  for  striking  upon  obstructions  or 
rocks  in  the  channel  which  ought  to  be  known  to  men  ex- 
perienced in  its  navigation,  but  not  for  those  which  are  un- 
known. He  is  required  to  have  such  knowledge  of  weather 
indications  as  experienced  men  of  his  class  are  supposed  to 
have,  though  it  would  not  be  negligence  in  him  to  start  to 
sea  with  his  tow  where  the  weather  bureau  predicted  good 
weather.     Nor  would  it  be  negligence  to  start  on  inland  nav- 

C.  A.  G17,  102  Fed.  767;  The  Virginia  Ehrman,  97  U.  S.  309-315,  24 
L.  Ed.  890;  The  Imperial  (D.  C.)  38  Fed.  614,  3  L.  R.  A.  234;  Peder- 
son  v.  Spreckles.  31  C.  C.  A.  308,  87  Fed.  938. 

|  80.  i  EASTERN  TRANSP.  LINE  v.  HOPE,  95  U.  S.  297,  24 
L.  Ed.  477;  The  A.  R.  Robinson  (D.  C.)  57  Fed.  667;  The  W.  H. 
Simpson,  25  0.  C.  A.  318,  80  Fed.  153;  The  Lady  Wimett  (D.  C.)  92 
Fed.  399;  Id.,  40  C.  C.  A.  212,  99  Fed.  1004. 

2  The  Margaret  94  U.  S.  494,  24.  L.  Ed.  146;  The  Mount  Hope,  29 
C.  C.  A.  365,  84  Fed.  910;  The  Syracuse  (D.  C)  84  Fed.  1005. 


124  stevedores'  contracts,  etc.  (Ch.*5 

igation  merely  because  the  weather  bureau  indicated  storms 
at  sea.3 

A  tugboat  man  who  contracts  to  perform  a  service  im- 
pliedly warrants  that  his  tug  is  sufficiently  equipped  and 
efficient  to  perform  the  service,  though  he  would  not  be  lia- 
ble for  any  breakdown  arising  from  causes  which  ordinary 
care  could  not  have  discovered  and  prevented.* 


SAME— FOR  WHOSE  ACTS  TUG  OR  TOW  LIABLE. 

61.  A  tug  and  tow  are  liable,  either  in  contract  or 
in  tort,  only  for  the  acts  and  defaults  of  those 
who  are  the  lawful  agents  or  representatives 
of  their  owners. 

Hence,  if  a  charterer  employs  a  tug  to  tow  his  vessel,  and 
under  the  terms  of  the  charter  party  he  has  no  right  to  bind 
the  vessel  for  such  contracts  and  this  is  known  to  the  party 
dealing  with  him,  the  vessel  would  not  be  liable  for  the  tow 
bill.  So,  too,  if  the  tug  at  the  time  is  in  the  hands  of  parties 
who  have  no  right  to  her  use,  she  would  not  be  liable  in  rem 
for  torts  committed  or  contracts  made  by  them.1 

A  towage  contract  is  pre-eminently  maritime,  and  may  be 
enforced  against  the  tug.2 

8  The  Belle,  35  C.  C.  A.  623,  93  Fed.  833;  The  B.  V.  MoOauley,  33 
C.  C.  A.  620,  90  Fed.  510;  The  Victoria,  37  C.  C.  A.  40,  95  Fed.  184. 

4  The  Undaunted,  11  Prob.  Div.  46;  The  Batata  [1898]  App.  Cas. 
513;  The  Rayenscourt  (D.  C.)  103  Fed.  668. 

§  61.  i  The  Mary  A.  Tryon  (D.  C.)  93  Fed.  220;  The  Tasmania,  13 
Prob.  Div.  110;  The  Anne,  1  Mason,  50S,  Fed.  Oas.  No.  412;  The 
Clarita,  23  Wall.  11,  23  L.  Ed.  146. 

2  Ward  v.  The  Banner,  Fed.  Cas.  No.  17,149;  The  Williams,  1 
Brown,  Adm.  208,  Fed.  Cas.  No.  17,710;  The  Erastina  (D.  C.)  50  Fed. 
126. 


§   62)  SALVAGE.  125 

CHAPTER  VI. 

OF  SALVAGE. 

62.  Nature  and  Grounds. 

63.  "Salvage"  Defined — Elements  of  Service. 

64.  The  Award— Amount  in  General. 

65.  Elements  of  Compensation  and  Bounty. 

66.  Incidents  of  the  Service. 

67.  Salvage  Contracts. 

68.  Salvage  Apportionment. 

69.  Salvage  Chargeable  as  between  Ship  and  Cargo. 

NATURE  AND  GROUNDS. 

62.  Salvage  is  peculiarly  maritime  in  its  nature. 
It  is  awarded  on  grounds  of  public  policy, 
and  is  independent  of  contract. 

This  is  one  of  the  most  interesting  branches  of  marine 
jurisprudence.  It  is  more  purely  maritime  in  its  nature  than 
any  heretofore  discussed.  It  finds  no  analogy  in  the  com- 
mon law,  nor,  indeed,  as  far  as  procedure  is  concerned,  in  the 
chancery  law,  though  it  largely  partakes  of  equitable  prin- 
ciples in  its  administration.  Both  the  common-law  and 
chancery  courts  enforce  rights  of  positive  obligation  arising 
either  from  contract  or  from  a  violation  of  some  binding 
duty  which  one  man  owes  to  another  in  the  organization  of 
modern  society.  Mere  moral  claims  or  duties  of  imperfect 
obligation  appeal  in  vain  to  those  courts,  no  matter  how 
loudly  they  may  knock  at  their  doors. 

But  the  right  of  salvage  depends  on  no  contract,  springs 
from  no  violation  of  positive  duty.  A  salvor  who  rescues 
valuable  ships  or  cargoes  from  the  remorseless  grasp  of 
wind  and  wave,  the  cruel  embrace  of  rocky  ledges  or  the 
devouring  flame,  need  prove  no  bargain  with  its  owner  as 


126  SALVAGE.  (Ch.*6 

the  basis  of  recovering  a  reward.  He  is  paid  by  the  courts 
from  motives  of  public  policy, — paid  not  merely  for  the 
value  of  his  time  and  labor  in  the  special  case,  but  a  bounty 
in  addition,  so  that  he  may  be  encouraged  to  do  the  like 
again. 

In  an  early  case  Chief  Justice  Marshall  well  contrasted  the 
doctrines  of  the  common-law  and  marine  courts  on  the 
subject :  "If  the  property  of  an  individual  on  land  be  ex- 
posed to  the  greatest  peril,  and  be  saved  by  the  voluntary 
exertions  of  any  person  whatever,  if  valuable  goods  be  res- 
cued from  a  house  in  flames,  at  the  imminent  hazard  of  life, 
by  the  salvor,  no  remuneration  in  the  shape  of  salvage  is 
allowed.  The  act  is  highly  meritorious,  and  the  service  is 
as  great  as  if  rendered  at  sea,  yet  the  claim  for  salvage  could 
not  perhaps  be  supported.  It  is  certainly  not  made.  Let 
precisely  the  same  service,  at  precisely  the  same  hazard,  be 
rendered  at  sea,  and  a  very  ample  reward  will  be  bestowed 
in  the  courts  of  justice."  1  This  same  comparison  is  well 
made  in  the  interesting  English  case  of  Falcke  v.  Insurance 
Co.2 

While  salvage  does  not  necessarily  spring  from  contract, 
it  may  do  so,  and  in  fact  usually  does  so ;  the  most  frequent 
instances  to  the  contrary  being  services  to  derelicts.  In 
modern  times  the  greater  use  of  steamers  and  better  meth- 
ods of  construction  render  these  cases  rare,  and  make  nearly 
all  the  cases  with  which  we  have  to  deal  spring  from  con- 
tract. Hence  salvage  is  classified  in  this  treatise  under  con- 
tract rights,  sacrificing  logic  to  convenience.  These  con- 
tracts, as  in  other  branches  of  the  law,  may  be  express  or 
implied.  A  service  rendered  to  a  distressed  vessel  with  the 
acquiescence  of  those  in  charge  implies  an  agreement  for 
payment  therefor,  even  though  not  a  word  is  said  about 
price.3 

§  62.     i  The  Blaireau,  2  Cranch,  239,  2  L.  Ed.  266. 

2  34  Ch.  Div.  234. 

«  Gould  v.  U.  S.,  1  Ct.  CI.  184;  Bryan  v.  U.  S.,  6  Ct.  CI.  128. 


§  63)      "salvage"  defined — elements  of  service.         127 

"  SALVAGE  "  DEFINED— ELEMENTS  OF  SERVICE. 

63.  Salvage  is  the  reward  allowed  for  a  service 
rendered  to  marine  property,  at  risk  or  in 
distress,  by  those  under  no  legal  obligation 
to  render  it,  which  results  in  benefit  to  the 
property  if  eventually  saved. 

* '  A  Service  ^Rendered. ' ' 

Space  forbids  the  enumeration  of  all  services  that  have 
been  held  by  the  courts  to  be  included  in  these  words.  The 
following  may  be  named  rather  as  illustrations  than  as  a 
catalogue : 

(i)  Towage  of  disabled  vessels.1 

(2)  Piloting  or  navigating  endangered  ships  to  safety.2 

(3)  Removing  persons  or  cargo  from  endangered  vessel.8 

(4)  Saving  a  stranded  ship  and  cargo.* 

(5)  Raising  a  sunken  ship  or  cargo.5 

(6)  Saving  a  derelict  or  wreck.6 

(7)  Taking  aid  to  a  distressed  ship  or  information  for  her 
to  port.7 

§  63.  1  THE  AKABA,  4  C.  C.  A.  281,  54  Fed.  197;  The  Chatfield 
(C.  C.)  52  Fed.  479;  The  Taylor  Dickson  (D.  C.)  33  Fed.  8S6. 

2  The  Anna,  6  Ben.  166,  Fed.  Oas.  No.  398;  The  Alamo,  21  C.  C.  A. 
451,  75  Fed.  602;  The  J.  L.  Bowen,  5  Ben.  296,  Fed.  Cas.  No.  7,322. 

3  The  John  Wesley,  Fed.  Cas.  No.  7,433;  The  Sir  William  Arm- 
strong (D.  C.)  53  Fed.  145. 

*  The  Sandringham  (D.  C.)  10  Fed.  556;  The  Egypt  (D.  C.)  17  Fed. 
359;  The  Kimberley  (D.  0.)  40  Fed.  289. 

b  The  Camanche,  8  Wall.  448,  19  L.  Ed.  397;  The  H.  D.  Bacon, 
1  Newb.  274,  Fed.  Cas.  No.  4,232;  The  Isaac  Allerton,  Fed.  Cas.  No. 
7,088. 

e  The  Janet  Court  [1897]  Prob.  Div.  59;  The  Thos.  W.  Haven  (D. 
C.)  48  Fed.  482;  The  Sybil,  5  Hughes,  61,  Fed.  Cas.  No.  4,824;  Sprague 
v.  140  Bbls.  Flour,  2  Story,  195,  Fed.  Cas.  No.  13,253. 

1  The  UndauLied,  Lush.  90. 


128  salvage.  (Ch.*6 

(8)  Saving  people  in  boats  of  distressed  ship.8 

(9)  Protecting  ship,  cargo,  or  persons  aboard  from  pirates 
or  wreckers.9 

(10)  Furnishing  men  or  necessary  supplies  or  appurte- 
nances to  a  ship  which  is  short  of  them.10 

(11)  Saving  a  ship,  cargo,  or  persons  aboard  from  fire 
either  aboard  or  in  dangerous  proximity.11 

(12)  Standing  by  a  distressed  ship.12 

(13)  Removing  a  ship  from  an  ice  floe  or  any  impending 
danger.18 

ilTo  Marine  Property.'''' 

It  is  difficult  to  understand  why  the  motives  of  public 
policy  on  which  the  law  of  salvage  is  based  do  not  apply  to 
the  rescue  of  any  property  in  danger  on  navigable  waters, 
whether  such  property  ever  formed  part  of  a  vessel  or  cargo 
or  not.  If,  for  instance,  a  passenger  on  a  train  crossing  a 
bridge  should  drop  a  bag  of  gold  or  a  valuable  jewel  case 
into  a  navigable  stream ,  the  salvor  should  be  as  much  en- 
titled to  a  reward  as  if  it  had  been  dropped  from  the  deck  of 
a  steamer.  But  in  view  of  the  decision  of  the  supreme  court 
in  the  case  of  COPE  v.  VALLETTE  DRY-DOCK  CO.  OF 
NEW  ORLEANS,14  and  the  decision  of  the  house  of  lords 

s  The  Cairo,  L.  R.  4  Adm.  &  Ecc.  184. 

»  Porter  v.  The  Friendship,  Fed.  Cas.  No.  10.783. 

10  Butterworth  v.  The  Washington,  Fed.  Cas.  No.  2,253;  Lamar  v. 
The  Penelope,  Fed.  Cas.  No.  8,007. 

11  THE  BIA.CKWALL,  10  Wall.  1,  19  L.  Ed.  870;  The  Northwester, 
Fed.  Cas.  No.  10,333;  The  Lydia  (D.  C.)  49  Fed.  606;  The  T.  P.  Leath- 
ers, Fed.  Cas.  No.  9,736;  The  Boyne  (D.  C.)  98  Fed.  444;  The  Circas- 
sian, 2  Ben.  171,  Fed.  Cas.  No.  2,723. 

12  The  Maude,  3  Asp.  338;  Allen  v.  The  Canada,"  1  Bee.  90,  Fed. 
Cas.  No.  219. 

13  The  Island  City,  1  Cliff.  210,  Fed.  Cas.  No.  55;  Staten  Island  & 
N.  Y.  Ferry  Co.  v.  The  Thos.  Hunt,  Fed.  Cas.  No.  13,326;  In  re  50,000 
Feet  of  Lumber,  2  Low.  64,  Fed.  Cas.  No.  4,783. 

1*  119  U.  S.  625,  7  Sup.  Ct.  336,  30  L.  Ed.  501. 


§  63)      "salvage"  defined — elements  of  service.         129 

in  the  Gas  Float  Whitton  Case,15  it  is  a  matter  of  great 
doubt  whether  salvage  can  be  claimed  against  anything  not 
connected  in  some  way  with  a  vessel  of  some  character.16 

"  At  Risk  or  in  Distress." 

This  does  not  imply  actual,  imminent  danger.  It  is  a 
salvage  service  if  the  vessel  is  in  such  a  condition  as  to  be 
in  need  of  assistance,  though  no  immediate  danger  threat- 
ens. The  test  is  well  defined  by  Dr.  Lushington :  "All 
services  rendered  at  sea  to  a  vessel  in  distress  are  salvage- 
services.  It  is  not  necessary,  I  conceive,  that  the  distress 
should  be  immediate  and  absolute ;  it  will  be  sufficient  if,  at 
the  time  the  service  is  rendered,  the  vessel  has  encountered 
any  damage  or  misfortune  which  might  possibly  expose  her 
to  destruction  if  the  services  were  not  rendered."  17 

Accordingly,  in  The  Albion,18  a  tug  was  allowed  a  salvage 
reward  for  bringing  in  a  ship  which  had  inadequate  ground 
tackle,  though  no  immediate  storm  threatened.  And  in  the 
case  of  The  Ellora,19  under  similar  weather  conditions,  sal- 
vage was  allowed  for  bringing  in  a  steamer  which  had  lost 
her  screw,  though  she  was  fully  rigged  with  sails.20 

"  By  Those  under  no  Legal  Obligation  to  Render  It." 

This  is  usually  briefly  expressed  in  the  books  by  speaking 
of  salvage  as  a  service  "voluntarily  rendered,"  and  is  meant 
to  exclude  services  rendered  by  those  under  some  contract- 
ual or  binding  obligation.  Hence,  as  a  rule,  the  crew  of  the 
distressed  vessel  cannot  claim  salvage,  for  that  is  a  part 
of  their  duty.  Nor  can  her  pilot,  for  the  same  reason.  Nor 
can  the  tug  towing  her,  for  that  is  a  part  of  the  contract  of 
towage.     Nor  can  a  passenger,  for  he  is  working  as  much 

15  [1897]  A  pp.  Cas.  337. 

io  See  the  discussion  of  this  subject  ante,  p.  12. 

it  The  Charlotte,  3  W.  Rob.  68. 

is  Lush.  282. 

if  Lush.  560. 

20  The  Fannie  Brown  (D.  C.)  30  Fed.  215. 

IIIGIIES.AD.- 9 


130  SALVAGE.  (Ch.  6 

to  save  himself  as  to  save  the  vessel.    Nor  can  the  life-sav- 
ing crews,  for  they  are  paid  to  do  that  very  work. 

There  are  circumstances  under  which  these  different 
classes  may  claim  salvage,  but  an  examination  will  show 
that,  so  far  from  weakening  the  general  rule  above  stated, 
these  circumstances  emphasize  and  confirm  it. 

Same — The  Crew. 

The  reason  why  they  cannot  ask  salvage  is  that  they  are 
but  fulfilling  their  contract  of  hiring  when  they  work  to 
save  their  ship.  Hence,  after  the  dissolution  of  such  con- 
tract, they  are  free  to  claim  it.  Accordingly,  in  the  case  of 
The  Warrior,21  where  a  ship  had  gone  aground  and  her 
master  took  his  crew  ashore  and  discharged  them,  some 
of  the  crew  who  came  back  subsequently,  and  saved  much 
of  her  stores  and  cargo,  were  allowed  to  claim  salvage. 

In  the  case  of  The  Florence,22  the  master  abandoned  his 
vessel  at  sea  and  took  the  crew  ashore.  Some  of  them  re- 
turned to  the  wreck  in  another  vessel,  and  assisted  in  sav- 
ing the  Florence.    They  were  held  entitled  to  salvage. 

In  The  Le  Jonet,23  all  the  crew  but  the  mate  left  the  ves- 
sel, which  had  been  injured  in  collision.  He  remained 
aboard,  hoisted  signals  of  distress,  and  secured  thereby  the 
aid  of  a  steamer,  which  took  her  into  port.  He  was  awarded 
salvage. 

Same — The  Pilot. 

A  pilot  cannot  claim  salvage  for  ordinary  pilotage  serv- 
ices, as  they  are  covered  by  his  pilot's  fee.  If,  however,  he 
does  work  outside  the  duties  of  a  pilot,  like  working  at  the 
pumps  or  laying  anchors  and  cables,  he  may  claim  as  salvor. 
Perhaps  the  best  expression  of  the  principle  is  Dr.  Lush- 

21  Lush.  476. 

22  16  Jur.  572. 

23  L.  R.  3  Adm.  &  Ecc.  556.  See,  on  the  general  subject,  The  C. 
V.  Bielman  (D.  C.)  108  Fed.  878. 


§    Go)        "SALVAGE"    DEFINED ELEMENTS    OF    SERVICE.  131 

ington's  remarks  in  The  Saratoga :  24  "In  order  to  entitle 
a  pilot  to  salvage  reward,  he  must  not  only  show  that  the 
ship  is  in  some  sense  in  distress,  but  that  she  was  in  such 
distress  as  to  be  in  danger  of  being  lost,  and  such  as  to  call 
upon  him  to  run  such  unusual  danger,  or  incur  such  un- 
usual responsibility,  or  exercise  such  unusual  skill,  or  per- 
form such  an  unusual  kind  of  service,  as  to  make  it  unfair 
and  unjust  that  he  should  be  paid  otherwise  than  upon  the 
terms  of  salvage  reward." 

An  important  case  on  the  subject  is  Akerblom  v.  Price.25 
The  awards  to  state  pilots,  however,  are  moderate  from 
motives  of  public  policy,  and  the  temptation  which  high 
awards  might  offer.26 

Same — The  Tug. 

Under  the  head  of  towage,  the  circumstances  under  which 
a  towage  contract  may  be  turned  into  a  salvage  service  not 
contemplated  by  the  original  contract  have  already  been 
discussed.     Ante,  p.  117,  c.  5,  §  57. 

Same — Passengers. 

Services  rendered  by  a  passenger  in  common  with  others 
can  give  no  claim  to  salvage,  as  he  is  working  for  that  self- 
preservation  which  is  the  first  law  of  nature.  But  when  he 
has  an  opportunity  of  saving  himself,  and  stays  by  the  ship 
instead  of  embracing  such  opportunity,  his  situation  is  an- 
alogous to  the  crew  after  the  dissolution  of  their  relation  to 
the  ship,  and  he  may  earn  salvage.27 

So,  too,  a  passenger  who  renders  special  services  differ- 
ent from  the  rest  of  those  aboard,  as  one  who  rigged  up  an 
ingenious  steering  apparatus  for  a  disabled  vessel,  was 
awarded  salvage  in  the  case  of  Towle  v.  The  Great  East- 

24  Lush.  318. 

so?  Q.  B.  Div.  129. 

26  The  Relief  (D.  C.)  51  Fed.  252. 

*?  Newman  v.  Walters,  3  Bos.  &  P.  612. 


132  SALVAGE.  (Ch.  6 

ern,28  though  this  is  nearer  the  border  line,  and  is  hard  to 
reconcile  with  the  decision  of  Lord  Stowell  in  the  leading 
case  of  THE  BRANSTON.29 

Same —  Government  Employes. 

These  cannot  claim  salvage  for  acts  done  as  part  of  their 
public  duties,  as  when  the  life-savers  remove  a  crew  or  their 
property  from  a  wreck,  or  a  vessel  of  the  navy  suppresses 
a  mutiny  on  a  merchant  vessel.  But  the  better  opinion  is 
that  they  may  claim  for  services  outside  their  regular  duties. 
For  instance,  in  the  Cargo  of  The  Ulysses,80  men  from  a 
vessel  of  the  royal  navy  were  refused  salvage  for  protecting 
a  wreck  from  plunderers,  but  allowed  it  for  work  in  remov- 
ing cargo. 

"  Which  Results  in  Benefit  to  the  Property  if  Eventually 
Saved." 

It  is  usually  said  that  success  is  essential  to  constitute  a 
salvage  service;  for  unless  the  property  is  saved  it  is  not 
a  service,  as  a  benefit  actually  conferred  is  the  very  founda- 
tion. A  salvor  may  find  a  ship  a  thousand  miles  at  sea,  but 
if  he  loses  her  at  the  very  harbor  bar  he  forfeits  his  claim ; 
for  he  has  conferred  no  benefit  upon  her  or  her  owners. 

Hence  it  is  that  salvage  awards  are  made  sufficiently  lib- 
eral to  pay  not  only  for  the  special  service,  but  to  encourage 
salvors  to  undertake  other  enterprises  not  so  promising. 
And  therefore  salvors  who  do  not  complete  their  job  can 
claim  nothing  if  the  vessel  is  subsequently  rescued  by  other 
salvors,  unless  their  efforts  result  in  placing  the  vessel  in 
a  better  position,  and  thereby  facilitating  the  work  of  sub- 
sequent salvors. 

For  instance,  in  THE  KILLEENA,81  a  vessel  put  five 

as  Fed.  Cas.  No.  14, 110. 

29  2  Hagg.  Adni.  3,  note.  Candee  v.  GS  Bales  of  Cotton  (D.  C.)  4S 
Fed.  479. 

so  13  Prob.  Div.  205. 
3i  6  Prob.  Div.  193. 


§    64)  THE    AWARD.  133 

of  her  crew  aboard  the  Killeena,  which  was  a  derelict,  to 
bring  her  into  port.  After  a  few  days,  they  had  enough 
of  it,  and  were  taken  aboard  another  vessel  at  their  own 
request.  The  second  vessel  then  put  some  of  her  crew 
aboard,  and  took  her  in  tow  until  the  rope  broke.  The 
second  crew  secured  the  assistance  of  a  steamer,  stuck  by 
the  derelict,  and  brought  her  in.  The  first  set  were  re- 
fused salvage,  but  the  others  were  allowed  it. 

In  The  Camellia,32  a  steamer  towed  the  Camellia  for  half 
a  day,  and  then  had  to  leave  her.  But  she  had  towed  her  85 
miles  nearer  to  port,  and  about  12  miles  nearer  her  course, 
thus  giving  her  a  better  position.  The  Camellia  reached 
port,  and  the  Victoria  was  allowed  a  small  sum  as  salvage. 

THE  AWARD— AMOUNT  IN  GENERAL. 

64.  The  amount  of  a  salvage  award  varies  according 
to  the  character  and  skill  of  the  salvors,  the  lo- 
cality, the  inducements  necessary  to  encour- 
age the  service,  the  value  of  the  property  saved 
or  of  the  salvor's  property  at  risk,  the  dan- 
ger to  salvors  and  saved,  the  skill  and  labor 
involved,  and  the  degree  of  success  achieved. 

Having  thus  discussed  the  general  nature  of  salvage,  the 
question  of  degree  must  now  be  considered,  and  the  consid- 
erations enumerated  which  go  to  swell  or  reduce  the  award. 

From  a  simple  service  that  is  salvage  only  in  name,  to 
those  acts  of  heroism  whose  bare  recital  quickens  the  pulse, 
the  range  is  immense.  Hence  it  follows  that  no  rule  can 
be  laid  down  by  which  a  salvage  service  can  be  measured  ac- 
curately. Each  case  has  its  peculiar  circumstances,  and  the 
amount  of  a  salvage  award  is  largely  a  matter  of  judicial 
discretion,  varying  with  the  idiosyncrasies  of  the  judge,  and 

829  Prob.  Div.  27. 


134  salvage.  (Ch.  6 

regulated  only  by  certain  general  rules.  These  are  largely 
corollaries  from  the  fundamental  doctrine  that  salvage  is  the 
outgrowth  of  an  enlightened  public  policy,  and  is  awarded, 
not  merely  on  a  niggardly  calculation  pro  opere  et  labore  in 
the  special  case,  but  as  an  encouragement  to  induce  the 
salvor  and  future  salvors  to  incur  risk  in  saving  life  and 
property. 

SAME— ELEMENTS  OE  COMPENSATION  AND 
BOUNTY 

65.  A  salvage  award  consists  of  two  elements: 

(a)  Compensation  for  actual  outlay  and  expenses 

made  in  the  enterprise. 

(b)  The  reward  as  bounty,  allowed  from  motives 

of  public  policy  as  a  means  of  encouraging 
extraordinary  exertions  in  the  saving  of 
life  and  property. 

The  first  of  these  items  is  practically  a  constant  quantity ; 
as  a  salvor,  if  his  service  is  important,  is  always  entitled,  at 
least,  to  be  repaid  his  expenses  and  to  be  paid  for  his  labor. 

The  second  element  of  salvage,  or  the  bounty  element,  is 
the  variable  quantity  in  salvage  awards.  Being  given  on 
motives  of  public  policy,  it  is  more  or  less  according  to  the 
merits  of  the  service  and  the  ability  of  the  owners  to  con- 
tribute out  of  the  funds  saved.1 

The  element  of  expense  is  always  considered  by  the  court, 
and  usually  allowed  specifically,  but  not  necessarily  so.  On 
this  subject  the  house  of  lords,  in  the  case  of  THE  DE 
BAY,2  says :  "It  was  contended  .that  some  of  these  items 
ought  not  to  be  taken  into  consideration  at  all,  as,  for  in- 
stance, the  loss  on  charter;    and  it  was  further  contended 

§  65.     i  The  Egypt  (D.  C.)  17  Fed.  359. 
2  8  A  pp.  Cas.  559. 


§    65)  THE    AWARD.  135 

that  in  no  case  ought  the  items  of  loss  or  damage  to  the 
salving  vessel  be  allowed  as  'moneys  numbered,'  but  that  they 
should  only  be  generally  taken  into  account  when  estimating 
the  amount  to  be  awarded  for  salvage  remuneration.  Their 
lordships  are  of  opinion  that  this  objection  is  not  well 
founded.  It  was  argued  that  by  allowing  the  several  items 
of  the  account,  and  then  a  further  sum  for  salvage,  the  sal- 
vors would  receive  payment  for  their  losses  twice  over ;  but 
this  is  only  on  the  supposition  that  the  court  below,  after 
giving  the  amount  of  the  alleged  losses  specifically,  has  con- 
sidered them  again  generally  in  awarding  £5,000  for  simple 
salvage  services.  It  is  not  to  be  presumed  that  the  learned 
judge  has  fallen  into  such  an  error,  and,  indeed,  it  appears 
that  he  has  not  done  so,  but  that  he  considered  the  £5,000  a 
reasonable  amount  for  salvage  reward,  wholly  irrespective 
of  damage  and  expenses.  Their  lordships  are  of  opinion 
that  it  is  always  justifiable,  and  sometimes  important, 
when  it  can  be  done,  to  ascertain  what  damages  and  losses 
the  salving  vessel  has  sustained  in  rendering  the  salvage 
service.  It  is  frequently  difficult  and  expensive,  and  some- 
times impossible,  to  ascertain  with  exactness  the  amount  of 
such  loss,  and  in  such  case  the  amount  of  salvage  must  be 
assessed  in  a  general  manner,  upon  so  liberal  a  scale  as  to 
cover  the  losses,  and  to  afford  also  an  adequate  reward  for 
the  services  rendered.  In  the  assessment  of  salvage  regard 
must  always  be  had  to  the  question  whether  the  property 
saved  is  of  sufficient  value  to  supply  a  fund  for  the  due  re- 
ward of  the  salvors,  without  depriving  the  owner  of  that 
benefit  which  it  is  the  object  of  the  salvage  services  to  secure 
him.  If,  as  in  the  present  case,  the  fund  is  ample,  it  is  but 
just  that  the  losses  voluntarily  incurred  by  the  salvor  should 
be  transferred  to  the  owner  of  the  property  saved,  for  whose 
advantage  the  sacrifice  has  been  made,  and,  in  addition  to 
this,  the  salvor  should  receive  a  compensation  for  his  exer- 
tion and  for  the  risk  he  runs  of  not  receiving  any  compensa- 
tion in  the  event  of  his  services  proving  ineffectual ;    for,  if 


136  SALVAGE.  (Ch.*6 

no  more  than  a  restitutio  in  integrum  were  awarded,  there 
would  be  no  inducement  to  shipowners  to  allow  their  ves- 
sels to  engage  in  salvage  services.  If  there  be  a  sufficient 
fund,  and  the  losses  sustained  by  the  salvor  are  ascertained, 
it  would  be  unreasonable  to  reject  the  assistance  to  be  de- 
rived from  that  knowledge  when  fixing  the  amount  of  sal- 
vage reward,  and  their  lordships  are  unable  to  appreciate 
the  argument  that  that  which  is  known  may  be  taken  into 
account  generally,  but  not  specifically." 

Professional  Salvors. 

It  follows  from  these  considerations  that  the  greatest  en- 
couragement should  be  extended  to  those  most  competent 
to  render  the  service.  Hence  the  courts  look  with  special 
favor  on  the  efforts  of  steamers,  and  will  not  diminish  their 
award  on  account  of  the  rapidity  of  their  service,  but  rather 
incline  to  enhance  it,  as  promptness  is  specially  commenda- 
ble.3 

Special  favor  is  shown  to  steamers  equipped  for  salvage 
work  and  to  professional  salvors,  in  view  of  the  large  ex- 
pense of  being  always  ready,  even  when  no  wrecks  are  re- 
ported, the  rapid  deterioration  of  such  property,  the  diffi- 
culty in  protecting  it  by  insurance,  and  the  importance  of 
having  the  business  in  the  hands  of  reputable  men.4 

Locality  as  Affecting  the  Award.     . 

The  awards  may  vary  with  the  locality.  The  courts  of 
the  South  Atlantic  Coast  have  felt  called  upon  to  be  liberal 
to  salvors,  on  account  of  the  special  dangers  of  that  coast, 
including  Hatteras,  the  turning  point  of  the  winds,  and  a 
long  and  desolate  seaboard  devoid  of  harbors  and  populous 
cities.  From  these  causes  and  the  comparative  fewness  of 
craft,  the  dangers  of  distressed  vessels  are  greatly  multi- 
plied, and  hence  the  same  service  is  better  paid  than  if  ren- 

s  The  Loudon  Merchant,  3  Hagg.  Adm.  394. 

4  THE  GLENGYLE  [1898]  Prob.  Div.  97;  Id.  [1898]  App.  Cas.  519; 
The  Susan,  1  Spr.  499,  Fed.  Cas.  No.  13.630. 


§    66)  THE    AWARD.  137 

dered  on  the  northern  coast,  where  harbors  are  abundant 

and  passers-by  are  frequent.8 

Increase  or  Diminution  of  Previous  Rate  of  Allowance. 

Salvage  awards,  being  made  on  grounds  of  public  policy, 
may  vary  at  different  times.  If  the  courts  find  that  the  in- 
ducements held  out  are  not  sufficiently  liberal  to  secure  the 
service,  if  they  find  that  distress  signals  are  unheeded  and 
valuable  property  abandoned,  they  will  increase  their 
awards,  and,  vice  versa,  if  smaller  awards  will  secure  such 
efforts,  they  will  diminish  them.6 

SAME— INCIDENTS  OF  THE  SERVICE. 

66.  In  addition  to  the  above  general  considerations, 
the  following  elements  in  each  special  case 
enhance  or  diminish  the  amount  of  the 
award,  according  to  their  relative  degree. 

(a)  The  degree  of  danger  from   which   the    lives 

or  property  are  rescued. 

(b)  The  value  of  the  property  saved. 

(c)  The  value  of  the  salvor's  property  employed 

and  the  danger  to  which  it  is  exposed. 

(d)  The  risk  incurred  by  the  salvors. 

(e)  The  skill  shown  in  the  service. 

(f )  The  time  and  labor  occupied. 

(g)  The  degree  of  success  achieved,  and  the  pro- 

portions of  value  lost  and  saved.1 

The  Danger. 

The  largest  awards  have  usually  been  given  where  life 
was  at  stake.     Courts  have  differed  as  to  whether  the  risk 

b  The  Mary  E.  Dana,  5  Hughes,  362,  17  Fed.  358;  The  Fannie 
Brown  (D.  C.)  30  Fed.  222,  223;  Cohen,  Adm.  131. 

«  The  Daniel  Steinman  (D.  C.)  19  Fed.  921,  922;  The  Edam  (D.  0.) 
13  Fed.  140,  141. 

S  06.     i  The  Sandringham,  5  Hughes,  316,  10  Fed.  556. 


138  SALVAGE.  (Ch.*  6 

which  the  salvor  himself  incurs,  or  that  from  which  the 
others  are  delivered,  ought  first  to  be  considered,  but  they 
do  not  differ  as  to  the  paramount  merit  of  a  service  into 
which  either  of  these  ingredients  enters.2  So,  too,  as  to 
risk  incurred  by  the  property  itself,  primarily  of  the  salved, 
secondarily  of  the  salvor.  The  greater  the  risk,  the  greater 
the  merit  of  the  service  and  the  greater  the  award. 

Under  this  head,  the  awards  in  derelict  cases  may  be  con- 
sidered. Derelicts  are  necessarily  in  greatest  danger. 
They  become  derelicts  because  their  crews  abandon  them 
as  sinking  vessels,  and,  even  if  they  do  not  at  once  go  down, 
the  chance  of  finding  them  is  small.  Hence  it  was  long  the 
practice  of  the  admiralty  courts  to  award  half  in  such  cases. 
But  the  later  decisions,  looking  at  the  reason  rather  than 
the  rule,  consider  all  the  circumstances,  and  give  less  than 
half,  if  a  lesser  amount  will  handsomely  reward  the  salvor.3 

As  expressed  by  Dr.  Lushington  in  THE  TRUE'  BLUE*  : 
"The  fact  of  derelict  is,  as  it  were,  an  ingredient  in  the  de- 
gree of  danger  in  which  the  property  is." 

The   Values  and  Rish  Incurred. 

The  value  of  the  property  saved  is  an  important  element. 
For  a  long  time  the  courts  were  in  the  habit  of  giving  fixed 
proportions.  In  fact,  originally  the  salvors  were  probably 
paid  in  kind.  In  modern  times  the  rule  of  proportion  has 
been  discarded. 

On  small  values  saved  the  proportion  is  necessarily 
greater  than  on  large.  Hence,  when  values  are  very  great, 
the  awards  do  not  materially  increase.  The  court  will  give 
a  sufficient  sum  to  compensate  the  salvors  handsomely  for 
their  labor  and  risk,  and  encourage  them  to  go  and  do  like- 

2  The  William  Beckford,  3  C.  Rob.  356;  The  Traveller,  3  Hagg. 
Adm.  371;  THE  AKABA,  4  C.  O.  A.  281.  54  Fed.  197. 

a  The  Sandringhani,  5  Hyigb.es,  316,  10  Fed.  556;  THE  TRUE 
BLUE,  L.  R.  1  P.  C.  250;  The  Amerique,  L.  R.  6  P.  C.  468;  The  Janet 
Court  [1897]  rrob.  Uiv.  59. 

*L.  R.  1  P.  C.  250. 


66)  THE    AWARD. 


139 


wise,  but  then  its  object  is  accomplished.  In  an  ordinary 
case  of  towage  salvage,  for  instance,  its  award  for  saving 
$500,000  would  not  greatly  differ  from  its  award  for  saving 
$300,000.* 

The  Skill. 

The  skill  shown  by  the  salvors  is  an  important  element,  to 
which  the  court  pays  great  attention.  It  is  on  this  account 
that  professional  salvors  are  especially  encouraged  and  most 
liberally  rewarded,  for  they  usually  possess  special  skill  and 
experience.  Volunteer  salvors  are  only  expected  to  show 
the  skill  incident  to  their  calling,  and  are  only  paid  for  such. 
Unskillfulness  causing  damage  will  diminish  a  salvage 
award,  though  the  court  makes  all  allowances  for  salvors.5 

A  salvor  may  be  legally  chargeable  with  negligence  as  to 
third  parties,  and  yet  not  be  negligent  as  to  the  property 
saved.  For  instance,  where  two  tugs  in  New  York  Harbor 
were  towing  a  vessel  away  from  a  burning  dock,  and  owing 
to  their  insufficient  power  brought  her  into  collision  with 
other  vessels,  they  were  held  liable  to  these  vessels,  but  en- 
titled to  have  the  damages  for  which  they  were  liable  con- 
sidered in  fixing  the  salvage  award.6 

Misconduct  or  bad  faith  will  cause  a  diminution  or  even 
an  entire  forfeiture  of  salvage;  for,  as  public  policy  is  the 
foundation  of  the  doctrine,  good  faith  and  fair  dealing  are 
essential.7 

The  Time  and  Labor. 

As  to  the  time  and  labor  occupied,  if  the  service  involves 
a  long  time  and  great  labor,  it  will,  of  course,  be  taken  into 
account.     In  the  case  of  steamers,  however,  the  shortness  of 

*  THE  CITY  OF  CHESTER,  9  Prob.  Div.  202-204. 

e  The  Magdalen,  31  Law  J.  Adm.  22;  The  Cheerful,  11  Prob.  Div. 
3;  The  Dyeden,  1  Notes  of  Cases,  115;  The  C.  S.  Butler,  L.  R.  4 
Adm.  &  Ecc.  178;  The  S.  W.  Downs,  1  Newb.  458,  Fed.  Cas.  No.  13,- 

411. 

e  The  Ashbourne  (D.  C.)  00  Fed.  111. 

7  TDK  OLANDEBOYE,  IT  O.  C.  A.  300,  70  Fed.  031;  The  North 
Carolina,  15  Pet  40,  10  L.  Ed.  G53;  The  Boston,  1  fcinnin.  341.  Fed.  Cas. 


140  SALVAGE.  (Ch.   O 

time  does  not  detract  from  the  service.  Dr.  Lushington  put 
this  very  well  when  he  said  that  he  could  not  understand 
why  the  patient  should  complain  of  the  shortness  of  an 
operation.8 

27te  Mtsult  Achieved. 

As  to  the  degree  of  success  achieved,  and  the  proportion 
of  values  lost  and  saved,  the  principle  is  that,  if  the  entire 
property  is  saved,  the  owner,  having  suffered  less,  can  bet- 
ter afford  to  pay  handsomely  than  if  only  a  portion  is  saved, 
and  the  salvor  is  to  be  paid  out  of  a  mere  remnant. 

For  instance,  other  things  being  equal,  the  court  will  de- 
cree a  larger  award  if  an  entire  cargo  of  $100,000  is  saved 
than  it  would  if  out  of  an  entire  cargo  of  $300,000  only 
$100,000  were  saved.8 

SALVAGE  CONTRACTS. 

67.  A  salvage  contract  is  binding  if  free  from  all 
circumstances  of  imposition  and  the  nego- 
tiations are  on  equal  terms;  but  not  if  the 
salvor  takes  advantage  of  his  position,  or  if 
either  is  guilty  of  fraud  or  misrepresenta- 
tion. 

In  modern  times  salvage  generally  springs  from  contract. 
The  courts  at  one  time  went  very  far  in  doing  away  with 
the  binding  effect  of  such  contracts,  often  saying  that  the 
amount  agreed  on  is  only  presumptive  evidence,  and  may  be 
inquired  into. 

It  is  difficult  to  see  why  there  should  be  any  difference  be- 
No.  1,673;  The  Byron,  Fed.  Cas.  No.  2,275;  The  Bello  Oorrunes,  6 
Wheat  152,  5  L.  Ed.  229;  The  Gov.  Ames  (C.  O.  A.)  108  Fed.  969. 

s  The  General  Palmer,  5  Notes  of  Oas.  159;  The  Thomas  Fielden, 
82  Law  J.  Adm.  61;   The  Andalusia,  12  L.  T.  (N.  S.)  584. 

9  The  Sandringham,  5  Hughes,  316,  10  Fed.  556;  The  Isaac  Aller- 
ton,  Fed.  Cas.  No.  7,088. 


§    68)  SALVAGE    APPORTIONMENT. 


141 


tween  a  salvage  contract  and  any  other.  Circumstances  of 
fraud,  oppression,  or  inequality  will  affect  any  contract. 
Hence  it  is  easy  enough  to  understand  why  a  contract  made 
at  sea  between  a  helpless  wreck  and  an  approaching  rescuer 
should  be  inquired  into,  just  like  a  contract  made  on  land 
under  the  persuasive  muzzle  of  a  revolver.  But  when  the 
circumstances  show  no  inequality  of  negotiation,  as  when  the 
owner  of  a  sunken  vessel,  after  ample  deliberation,  contracts 
on  land,  in  the  comfort  of  his  office,  to  have  his  vessel  raised, 
there  is  no  reason,  on  principle,  why  he  should  not  be  held 
to  his  bargain,  even  if  it  should  turn  out  to  be  a  bad  one. 
And  so  the  supreme  court  has  recently  decided.1 

SALVAGE  APPORTIONMENT. 

68.  A  salvage  award  is  apportioned  among  those 
who  contribute  directly  or  indirectly  to  the 
service,  including  the  owners  of  the  salving 
property  at  risk  ;  and  admiralty  has  juris- 
diction of  a  suit  to  compel  an  apportion- 
ment. 

Having  discussed  the  doctrines  governing  the  assessment 
of  a  salvage  award,  it  is  now  necessary  to  consider  to  whom 
the  amount  so  fixed  should  be  paid.  As  a  rule,  it  goes  only 
to  those  who  participated,  directly  or  indirectly,  in  the  serv- 
ice. All  the  salving  crew  share,  those  immediately  engaged 
most  largely ;  but  those  whose  work  on  the  salving  vessel  is 
increased  also  share  in  less  proportion.  The  owners  of  the 
salving  vessel,  though  not  present,  participate  on  account  of 
the  risk  to  which  their  property  is  exposed.  If  the  salving 
vessel  is  a  steamer,  her  owners  receive  much  the  greater 
portion,  on  account  of  the  efficiency  of  such  vessels.     In  such 

7.  i  The  Sir  William  Armstrong  (D.  C.)  53  Fed.  145;  THE 
ELFRIDA,  23  C.  C.  A.  527,  77  Fed.  754,  172  U.  S.  186,  19  Sup.  Ct. 
140,  43  L.  Ed.  413;   Akerblom  v.  Price,  7  Q.  B.  Div.  129. 


142  SALVAGE.  (Ch\  6 

cases  it  is  usually  the  rule  to  award  the  owners  three- 
fourths.1 

Of  the  amount  set  aside  for  the  crew,  the  master,  on  ac- 
count of  his  responsibilities,  receives  much  the  larger  pro- 
portionate share,  and  the  remainder  is  divided  among  the 
crew  in  proportion  to  their  wages,  unless  special  circumstan- 
ces call  for  special  allowances.  Passengers  or  other  persons 
aboard  the  salving  ship  may  share  if  they  render  aid. 

It  is  frequently  necessary  to  make  a  salvage  award  as  a 
whole,  and  then  apportion  it  among  different  sets  of  salvors. 
The  apportionment  is  made  according  to  their  relative  mer- 
its, though  the  first  set  of  salvors  usually  receive  special  con- 
sideration.2 

Admiralty  has  jurisdiction  of  a  suit  by  co-salvors  to  com- 
pel a  refunding  by  a  salvor  to  whom  the  entire  award  has 
been  paid.8 

SALVAGE  CHARGEABLE  AS  BETWEEN  SHIP  AND 

CARGO. 

69.  A  salvage  award  is  charged  against  vessel  and 
cargo  in  proportion  to  their  values  at  the 
port  of  rescue,  each  being  severally  liable 
for  its  share  alone.  Freight  contributes  pro 
rata  itineris. 

Having  thus  discussed  to  whom  a  salvage  award  is  to  be 
paid,  let  us  now  consider  who  are  to  pay  it.  The  principle 
is  that  vessel,  cargo,  and  freight  money  saved  are  to  con- 
tribute according  to  their  relative  values  at  the  port  of  res- 
cue. The  same  percentage  is  charged  against  all,  even 
though  portions  were  saved  more  easily  and  were  at  less 

§'68.  iThe  City  of  Paris,  Kenu.  Civ.  Salv.  154;  Cape  Fear  Tow- 
ing &  Transp.  Co.  v.  Pearsall,  33  C.  C.  A.  161,  90  Fed.  435. 

2  The  Santipore,  1  Spinks,  231;   The  Livietta,  S  Prob.  Div.  24. 

3  McCounochie  v.  Kerr  (D.  C.)  9  Fed.  50. 


§    69)         CHARGEABLE    AS    BETWEEN    SHIP   AND    CARGO.  143 

risk ;  the  reason  being  that  differences  in  this  respect  would 
produce  endless  confusion,  and  tempt  the  salvors  to  save 
portions  of  the  cargo  without  attempting  to  rescue  other 
portions.     Even  specie  is  subject  to  the  same  rule.1 

If  the  voyage  has  not  been  completed,  the  court  will  pro- 
rate the  freight  money  from  the  initial  point  to  the  port  of 
rescue,  and  make  only  that  proportion  of  the  freight  con- 
tribute. For  instance,  if  the  voyage  is  one-third  completed 
at  the  time  of  the  accident,  the  value  of  one-third  of  the 
freight  will  be  taken,  on  which  salvage  will  be  assessed.2 

As  between  ship  and  cargo,  each  is  liable  severally  only  for 
its  own  proportion.  The  salvor  who  neglects  to  proceed 
against  both  cannot  recover  his  entire  salvage  from  one.3 

The  case  of  The  Lamington  4  contains  an  interesting  com- 
pilation of  salvage  precedents. 

§  69.  i  The  St.  Paul,  30  C.  C.  A.  70,  86  Fed.  340;  The  Longford. 
6  Prob.  Div.  60. 

2  THE  NORMA,  Lush.  124;  The  Sandringham,  5  Hughes,  316,  10 
Fed.  556. 

»  The  Raisby,  10  Prob.  Div.  114;  The  Jewell  (D.  C.)  41  Fed.  103; 
The  Alaska  (D.  C.)  23  Fed.  597. 

*  30  C.  C.  A.  271,  86  Fed.  675. 


144  CONTRACTS    OF    AFFREIGHTMENT.  (Ch.   7 


CHAPTER  VII. 

OF  CONTRACTS  OF  AFFREIGHTMENT  AND  CHARTER 
PARTIES. 

70-72.     "Contracts    of   Affreightment"    Defined,    and    Distinguished 
from  Charter  Parties. 

73.  Warranties  Implied  in   Contracts  of  Affreightment  against 

Unseaworthiness  and  Deviation. 

74.  Mutual  Remedies  of  Ship  and  Cargo  on  Contracts  of  Affreight- 

ment. 

75.  Entirety  of  Affreightment  Contract 

76.  Apportionment  of  Freight. 
77-78.     Ship  as  Common  Carrier. 

7'.).  Bill  of  Lading— Making  and  Form  in  General. 

80.  Negotiability. 

81.  Exceptions  in  General. 

82.  Exception  of  Perils  of  the  Sea. 

83.  "Charter  Parties"  Defined. 

84.  Construction  of  Charter  Parties. 

85.  Conditions  Implied  in  Charter  Parties  of  Seaworthiness  and 

against  Deviation. 
B6.     Cancellation  Clause  in  Charter  Parties. 

87.  Loading  Under  Charter  Parties. 

88.  Execution  of  Necessary  Documents  under  Charter  Parties. 

89.  Cesser  Clause  in  Charter  Parties. 


"CONTRACTS  OF  AFFREIGHTMENT"  DEFINED,  AND 
DISTINGUISHED  FROM  CHARTER  PARTIES. 

70.  A  vessel  may  be   operated   by  her  owners  on 

their  own  account,  or  she  may  be   hired   by 
her  owners  to  others. 

71.  The  hiring  of  a  vessel  to  others  is  usually  done 

by  charter  parties. 

72.  When  a  vessel  is  operated  by  her  owners  on 

their   own  account,  or  contracts  direct  with 


§    73)  IMPLIED    WARRANTIES.  145 

her  shippers,  such  contracts  are  called  "con- 
tracts of  affreightment." 

The  contracts  of  vessels  heretofore  discussed  have  been 
those  incidental  transactions  tending  to  facilitate  the  object 
of  her  creation.  The  class  of  contracts  which  we  are  now 
to  discuss  spring  directly  out  of  her  use  as  a  business  en- 
terprise. 

A  vessel  is  made  to  plow  the  seas,  not  to  rot  at  the  piers. 
But,  with  the  exception  of  those  which  are  used  as  toys  by 
the  rich,  they  do  not  plow  the  seas  for  mere  amusement. 
The  reward  which  she  earns  for  transporting  cargo  is  called 
"freight."  In  the  case  of  BRITTAN  v.  BARNABY,1  Mr. 
Justice  Wayne  defines  "freight"  as  the  hire  agreed  upon 
between  the  owner  or  master  for  the  carriage  of  goods 
from  one  port  or  place  to  another. 

WARRANTIES      IMPLIED     IN     CONTRACTS     OF     AF- 
FREIGHTMENT AGAINST  UNSEAWORTHI- 
NESS AND  DEVIATION. 

73.  In  contraot3  of  affreightment  there  is  an  im- 
plied -warranty  of  sea-worthiness  and  against 
deviation. 

The  warranty  of  seaworthiness  in  the  relations  between 
vessel  and  shipper  is  one  of  the  most  rigid  known  to  the 
law.  It  is  a  warranty  that  at  the  commencement  of  the 
voyage  the  vessel  shall  be  thoroughly  fitted  for  the  same, 
both  as  regards  structure  and  equipment.  It  is  not  merely 
a  warranty  that  the  vessel  owner  will  exercise  reasonable 
care  to  have  her  in  this  condition,  or  even  that  he  will  re- 
pair such  things  as  are  discoverable,  but  it  is  an  absolute 
warranty  of  fitness  for  the  voyage  against  even  such  de- 
fects as  are  latent.1 

§§  70-72.     i  21  How.  527,  16  L.  Ed.  177. 

§  73.     >  The  Northern  Belle,  ir>4  U.  S.  571,  14  Sup.  Ct.  1166,  19  L. 

HUGHES, AD.-IQ 


146  CONTRACTS  OF  AFFREIGHTMENT.         (Ch.  7 

The  warranty  against  deviation  is  that  the  vessel  will  pur- 
sue her  voyage  by  the  accustomed  route  without  unneces- 
sary delay ;  though  going  to  a  port  a  little  out  of  the  straight 
course,  when  it  is  shown  to  be  the  usage  of  that  navigation 
for  vessels  to  stop  by  such  a  port,  would  not  be  considered 
as  a  deviation.2 

MUTUAL  REMEDIES  OF  SHIP  AND  CARGO  ON  CON- 
TRACTS OF  AFFREIGHTMENT. 

74.  It  is  a  fundamental  principle  that  the  ship  is 
pledged  to  the  cargo  and  the  cargo  to  the 
ship  for  the  fulfillment  of  the  conditions  of 
the  contract  of  carriage. 

This  reciprocal  right  of  procedure  is  one  of  the  most  an- 
cient doctrines  of  the  admiralty  courts.  Under  it,  the  ves- 
sel has  a  lien  upon  the  cargo  for  its  freight  money.1 

This  lien  or  right  of  the  vessel  to  hold  the  cargo  for  its 
freight  money  differs  from  the  admiralty  liens  heretofore 
discussed  in  the  fact  that  it  is  dependent  upon  actual  or 
constructive  possession.  The  vessel  owner  who  delivers  the 
cargo  unconditionally  into  the  possession  of  the  consignee 
loses  his  right  to  hold  the  cargo  itself  for  his  freight.2 

But  one  of  the  principles  of  the  law  of  freight  is  that 
freight  is  not  due  until  the  cargo  is  unloaded,  and  the  con- 
signee has  an  opportunity  to  inspect  the  goods  and  ascer- 
tain their  condition.  Hence  the  master  of  a  vessel  cannot 
demand  his  freight  as  a  condition  precedent  to  unloading; 

Ed.  748;  THE  CALEDONIA,  157  U.  S.  124.,  15  Sup.  Ct.  537,  39  L.  Ed. 
644. 

2  HOSTETTER  v.  PARK.  137  U.  S.  30,  11  Sup.  Ct.  1,  34  L.  Ed.  568; 
The  Prussia  (D.  C.)  100  Fed.  484. 

§  74.  i  Certain  Logs  of  Mahogany,  2  Sumn.  589,  Fed.  Cas.  No. 
2,559. 

2  Pioneer  Fuel  Co.  v.  McBrier,  28  C.  C.  A.  466,  84  Fed.  495;  Cargo 
of  Fertilizer  (D.  C.)  88  Fed.  984. 


§    75)  ENTIRETY    OF    AFFREIGHTMENT    CONTRACT.  147 

nor,  on  the  other  hand,  can  the  consignee  demand  the  goods 
as  a  condition  precedent  to  paying  the  freight.  The  mas- 
ter, in  other  words,  must  discharge  his  goods,  but  not  de- 
liver them.  If  he  and  the  consignee  are  dealing  at  arm's 
length,  his  proper  procedure  would  be  to  discharge  them  in 
a  pile  by  themselves,  notifying  the  consignee  that  he  does 
not  give  up  his  lien  for  freight;  or,  if  necessary  for  their 
protection,  discharge  them  into  a  warehouse,  or  into  the 
hands  of  a  third  person.  Then  if  the  consignee,  after  a 
reasonable  time  allowed  for  inspection,  does  not  pay  the 
freight,  the  master  can  proceed  in  rem  against  the  goods  to 
enforce  its  payment.3 

Conversely,  the  cargo  has  a  right  of  procedure  against 
the  ship  for  any  violation  of  the  contract  of  affreightment.4 


ENTIRETY  OF  AFFREIGHTMENT  CONTRACT. 

75.  The  contract  of  affreightment  is  an  entire  con- 
tract, so  that  freight  is  not  earned  until  the 
contract  is  completed. 

On  this  subject  Mr.  Justice  Story  says  in  the  case  of  The 
Nathaniel  Hooper,  above  cited:  "The  general  principle  of 
the  maritime  law  certainly  is  that  the  contract  for  the  con- 
veyance of  merchandise  on  a  voyage  is  in  its  nature  an  en- 
tire contract,  and,  unless  it  be  completely  performed  by  the 
delivery  of  the  goods  at  the  place  of  destination,  no  freight 
whatsoever  is  due :  for  a  partial  conveyance  is  not  within 
the  terns  or  the  intent  of  the  contract,  and,  unless  it  be 
completely  performed  by  the  delivery  of  the  goods  at  the 

«  BRITTAN  v.  BARNABT,  21  How.  527,  10  L.  Ed.  177;  BAGS  OF 
LINSEED,  1  Black,  108,  17  L.  Ed.  35;  The  Nathaniel  Hooper,  Fed. 
Gas.  No.  10,032;  The  Cassius,  2  Story,  81,  Fed.  Cas.  No.  504;  The 
iirer,  1  Spr.  473,  Fc-d.  Cas.  No.  14,159. 

'  The  Rebecca,  1  Ware,  187,  Fed.  Cas.  No.  11,619;  Bulkley  v. 
Cotiuii  Co.,  24  How.  386,  10  L.  Ed.  599. 


148  CONTRACTS    OF    AFFREIGHTMKNT.  (Ch.   7* 

place  of  destination,  no  freight  whatsoever  is  due,  and  the 
merchant  may  well  say  'Non  in  hsec  fcedera  veni.'  " 

Under  this  principle,  in  case  of  a  marine  disaster,  the 
master  has  the  right  to  repair  and  complete  the  voyage 
even  though  this  action  on  his  part  involves  delay,  or  he 
may  transship  the  goods  into  another  vessel  and  so  save 
the  freight.  If  the  delay  or  the  condition  of  the  goods  is 
such  as  to  render  either  of  these  expedients  unprofitable, 
he  may  sell  the  goods  at  an  intermediate  port,  and  termi- 
nate the  venture,  but  in  the  latter  case  he  would  not  be 
entitled  to  his  freight.1 


APPORTIONMENT  OF  FREIGHT. 

76.  Freight  is  payable  pro  rata  at  an  intermediate 
port,  if  the  voyage  is  broken  up,  only  by  the 
consent  of  the  consignee,  either  actual,  or 
implied  from  his  voluntarily  receiving  his 
goods  at  such  intermediate  port. 

This  is  not  an  exception  to  the  general  rule  based  upon 
the  principle  of  entirety  of  contracts,  that  freight  is  only 
due  when  the  voyage  is  completed.  It  is  merely  tantamount 
to  saying  that  the  parties,  by  mutual  agreement,  may  re- 
scind the  contract  at  an  intermediate  port.  Hence  the  ac- 
ceptance of  the  goods  at  an  intermediate  port,  not  volun- 
tarily, but  in  pursuance  of  a  practical  necessity  on  the  part 
of  the  consignee  to  receive  them,  does  not  entitle  the.  ves- 
sel to  pro  rata  freight,  and  if  the  vessel  incurs  expenses 
before  leaving  the  initial  port  at  all,  or  "breaking  ground," 
as  it  is  technically  called,  no  pro  rata  freight  could  be 
equitably  claimed.1 

§  75.     i  Jordan    v.   Banking   Co.,   Fed.    Cas.   No.   7,524;     Hugg   v. 
Insurance  Co.,  7  How.  595,  12  L.  Ed.  S34. 
§  76.     i  The  Nathaniel  Hooper,  Fed.  Cas.  No.  10,032;  Sampayo  v. 


§§    77-78)  SHIP    AS    COMMON    CARRIER.  1-49 

The  delivery  of  the  cargo  on  a  wharf  with  notice  to  the 
consignee,  or  even  without  notice,  if  that  is  the  usage  of 
the  port,  is  a  termination  of  the  ship's  liability  as  carrier.2 

The  vessel  owner  is  entitled  to  his  freight  if  the  goods 
arrive  in  specie,  even  though  they  have  been  so  injured 
as  to  be  practically  valueless,  provided  the  injury  is  not 
caused  by  such  acts  as  would  render  the  carrier  liable.8  In 
a  suit  by  the  vessel  owner  for  freight,  the  consignee  may 
in  the  same  suit  plead  in  recoupment  any  damage  done  to 
the  goods  for  which  the  carrier  is  liable.4  The  receipt  of 
the  goods  by  the  consignee  is  an  implied  promise  on  his 
part  to  pay  the  freight,  and  he  may  be  sued  for  it  person- 
ally.5 

SHIP  AS  COMMON  CARRIER. 

77.  A  ship  may  or  may  not  be  a  common  carrier, 

according  to  the  manner  in  -which  she  is  be- 
ing- used. 

78.  A  general  ship  is  a  common  carrier. 

We  must  now  consider  in  what  capacity  a  ship  carries 
on  her  trade,  whether  in  the  hands  of  her  owners  or  her 
charterers.  When  is  a  ship  a  common  carrier,  and  when 
not?  It  is  not  easy  to  define  exactly  who  are  common 
carriers  and  who  are  not.  The  test  is  well  laid  down  in 
the  case  of  The  Niagara,1  where  the  court  says :     "A  com- 

Salter,  1  Mason,  43,  Fed.  Cas.  No.  12,277;  The  Tornado,  108  U.  S.  342, 
2  Sup.  Ct.  746,  27  L.  Ed.  747. 

2  Constable  v.  Steamship  Co.,  154  U.  S.  51,  14  Sup.  Ct.  1062,  38  L. 
Ed.  903. 

»  Hugg  v.  Insurance  Co.,  7  How.  595,  12  L.  Ed.  834;  Seamen 
T.  Adler  (C.  C.)  37  Fed.  268. 

*  Snow  v.  Carruth,  1  Spr.  324,  Fed.  Cas.  No.  13,144;  Bearse  v. 
Hopes,  1  Spr.  331,  Fed.  Cas.  No.  1,192. 

Philadelphia  &  R.  R.  Co.  v.  Barnard,  3  Ben.  39,  Fed.  Cas.  No.  11,- 
086;  Trask  v.  Duvall,  4  Wash.  C.  C.  181,  Fed.  Cas.  No.  14,144. 

§§  77,  78.    i  21  How.  22,  16  L.  Ed.  41. 


150  CONTRACTS    OF    AFFREIGHTMENT.  [Ch.   7 

mon  carrier  is  one  who  undertakes  for  hire  to  transport 
the  goods  of  those  who  may  choose  to  employ  him  from 
place  to  place.  He  is  in  general  bound  to  take  the  goods 
of  all  who  offer."  Story  thus  defines  a  "common  carrier" : 
'To  bring  a  person  within  the  description  of  a  common 
carrier,  he  must  exercise  it  as  a  public  employment ;  he 
must  undertake  to  carry  goods  for  persons  generally ;  and  he 
must  hold  himself  out  as  ready  to  engage  in  the  transporta- 
tion of  goods  for  hire  as  a  business,  not  as  a  casual  oc- 
cupation pro  hac  vice."  2 

From  this  definition  it  is  clear  that  regular  liners  are 
common  carriers,  as  is  any  ship  that  carries  on  business 
for  all,  and  by  advertisement  or  habit  carries  goods  for  all 
alike.     A  general  ship  is  a  common  carrier.3 

On  the  other  hand,  a  ship  chartered  for  a  special  cargo, 
or  to  a  special  person,  is  not  a  common  carrier,  but  only 
an  ordinary  bailee  for  hire.4 


BILL  OF  LADING— MAKING  AND  FORM  IN 
GENERAL. 

79.  The  document  evidencing  the  contract  of  ship- 
ment is  known  as  a  "bill  of  lading."  Even 
in  the  case  of  chartered  vessels,  and  of 
course  ;  n  the  case  of  vessels  trading  on  own- 
er's account,  the  bill  of  lading  is  usually 
given  by  the  master  to  the  shipper  direct, 
and  binds  the  vessel  or  her  owners  to  the 
shipper. 

s  Stor.v,  Bailm.  §  495. 

8  Liverpool  &  G.  W.  S.  Co.  v.  Insurance  Co.  (The  Montana)  129  U. 
S.  437,  9  Sup.  Ct.  469,  32  L.  Ed.  7SS. 

4  Lamb  v.  Parkman,  1  Spr.  343,  Fed.  Cas.  No.  8,020;  The  Dan 
(D.  C.)  40  Fed.  691;   Nugent  v.  Smith,  1  C.  P.  Div.  423. 


§    SO)  BILL    OF    LADING.  151 

Originally  it  was  a  simple  paper.  Here  is  an  old  form: 
"Shipped  by  the  grace  of  God,  in  good  order,  by  A.  B., 
merchant,  in  and  upon  the  good  ship  called  the  John  and 
Jane,  whereof  C.  D.  is  master,  now  riding  at  anchor  in  the 
river  Thames,  and  bound  for  Barcelona,  in  Spain,  20  bales 
of  broadcloth,  marked  and  numbered  as  per  margin;  and 
are  to  be  delivered  in  the  like  good  order  and  condition  at 
Barcelona  aforesaid  (the  dangers  of  the  sea  excepted),  unto 
E.  F.,  merchant  there,  or  to  his  assigns,  he  or  they  paying 

for   such   goods,     per   piece   freight,   with   primage 

and  average  accustomed.  In  witness  whereof  the  master  of 
said  ship  hath  affirmed  to  three  bills  of  lading  of  this  tenor 
and  date,  one  of  which  bills  being  accomplished,  the  other 
two  to  stand  void.  And  so  God  send  the  good  ship  to  her 
destined  port  in  safety. 

"Dated  at  London  the day  of ." 

This  form  is  substantially  the  same  as  that  used  to-day 
by  the  coastwise  schooners. 

But  under  modern  business  methods  a  shipper  of  produce 
for  export,  like  cotton,  tobacco,  or  grain,  can  go  to  his 
railway  station  far  inland,  and  procure  a  through  bill  of 
lading  to  England  or  the  Continent.  This  is  a  very  elab- 
orate document,  amphibious  in  nature,  as  half  its  stipulations 
apply  to  land  carriage  and  half  to  water  carriage.  A  sample 
may  be  seen  in  a  footnote  to  the  case  of  The  Montana.1 


SAME— NEGOTIABILITY. 

80.  A  bill  of  lading  is  negotiable  only  in  a  quali- 
fied sense.  It  does  transfer  the  title,  but  it 
is  not  so  far  negotiable  as  to  shut  out  any 
defenses  which  could  be  made  as  between 
the  carrier  and  the  original  holder. 

§  7U.     1  129  U.  6.  401,  9  .Sup.  Ct  409,  32  L.  Ed.  7S8. 


152  CONTRACTS    OF    AFFREIGHTMENT.  (Ch.   7 

For  instance,  in  the  case  of  The  Treasurer,1  the  assignee 
of  a  bill  of  lading  illegally  refused  to  pay  the  freight,  and 
the  consignee  thereupon  treated  this  as  rescinding  the  con- 
tract of  sale  between  him  and  the  assignee  for  the  cargo 
represented  by  the  bill  of  lading  and  sold  it  to  a  third  party. 
The  assignee  thereupon  proceeded  against  the  ship.  Judge 
Sprague  held,  however,  that  as  he  had  illegally  refused  to 
pay  the  freight,  the  master  could  have  even  sold  the  cargo, 
and  that  the  indorsing  of  the  bill  of  lading  to  him  gave  him 
no  greater  rights  than  any  other  delivery  by  symbol  could 
have;  that  such  a  delivery  could  have  no  greater  efficacy 
than  a  manual  delivery  of  the  property  itself,  and  therefore 
his  action  could  not  be  maintained;  and  it  is  well  settled 
that  the  master  may  prove  a  short  delivery  of  cargo  in 
cases  where  he  is  not  responsible  even  against  an  assignee 
of  a  bill  of  lading. 

It  is  also  well  settled  that  a  master  cannot  bind  the  ves- 
sel or  owners  by  receipting  for  goods  not  actually  in  his 
custody,  but  that  such  defense  can  be  set  up  even  against 
a  bona  fide  holder  of  the  bill  of  lading,  though  it  is  some- 
times a  nice  question  as  to  the  exact  point  at  which  the 
goods  passed  into  the  custody  of  the  master.2 

A  recital  in  the  bill  of  lading  that  goods  are  received  in 
good  condition  puts  upon  the  carrier  the  burden  of  proving 
a  loss  by  excepted  perils  in  case  the  goods  when  delivered 
are  in  a  damaged  condition.8 

§  80.    H  Spr.  473,  Fed.  Cas.  No.  14,159. 

a  American  Sugar  Refining  Co.  v.  Maddock,  36  C.  O.  A.  42,  93  Fed. 
980;  Bulkley  v.  Cotton  Co.,  24  How.  3S6,  16  L.  Ed.  599;  Richmond 
&  D.  R.  Co.  v.  McFadden,  154  U.  S.  155,  14  Sup.  Ct.  990,  3S  L.  Ed. 
944. 

a  BRITTAN  v.  BARNABY,  21  How.  527,  16  L.  Ed.  177;  The  Queen 
(D.  0.)  78  Fed.  155;  Nelson  v.  Woodruff,  1  Black,  156,  17  L.  Ed.  97. 


§    81)  BILL    OP    LADING.  153 


SAME— EXCEPTIONS  IN  GENERAL. 

81.  Independent  of  statute,  a  carrier  cannot  stipu- 
late for  exemption  from  negligence  in  a  bill 
of  lading,  as  such  a  stipulation  contravenes 
public  policy.1 

But  he  may  value  the  goods  in  the  bill  of  lading,  and 
limit  his  liability  to  that  valuation.2  And  he  may  limit  his 
liability  for  a  passenger's  baggage.3  He  may  require  claims 
to  be  made  against  him  in  a  limited  time.4 

Under  the  decisions  of  the  English  courts,  a  carrier  may 
stipulate  for  exemption  from  negligence.  As  nearly  all  the 
foreign  carrying  trade  is  done  in  English  bottoms,  some 
smart  Englishman  inserted  in  their  bills  of  lading  a  clause 
known  as  the  "flag  clause,"  which  stipulated  that  the  con- 
tract of  carriage  should  be  governed  by  the  law  of  the 
vessel's  flag.  The  object  was  to  protect  the  English  car- 
rier against  the  American  shipper.  The  American  courts 
as  a  rule  have  refused  to  enforce  this  clause,  looking  upon 
it  as  an  indirect  attempt  to  stipulate  against  negligence.6 

It  is  beyond  the  limits  of  this  treatise  to  discuss  the  con- 
struction of  the  various  exceptions  contained  in  bills  of 
lading. 

§  81.  i  NEW  YORK  C.  &  H.  R.  CO.  v.  LOCKWOOD,  17  Wall. 
357,  21  L.  Ed.  627;  Virginia  &  T.  R.  Co.  v.  Sayers,  26  Grat.  (Va.)  328. 

2  Richmond  &  D.  R.  Co.  v.  Payne,  86  Va.  481,  10  S.  E.  749,  6  L.  R. 
A.  849;  Hart  v.  Railroad  Co.,  112  U.  S.  331,  5  Sup.  Ct.  151,  28  L.  Ed. 
717. 

»  Humphreys  v.  Perry,  148  U.  S.  627,  13  Sup.  Ct.  711,  37  L.  Ed.  5S7, 

*  Express  Co.  v.  Caldwell,  21  Wall.  264,  22  L.  Ed.  556;  The  Queen 
of  the  Pacific,  180  U.  S.  49,  21  Sup.  Ct  278,  45  L.  Ed.  — . 

6  The  Guildhall  (D.  C.)  58  Fed.  796;  Id.,  12  C.  C.  A.  445,  64  Fed. 
867;  The  Glenmavis  (D.  C.)  69  Fed.  472;  The  Victory  (D.  0.)  63  Fed. 
040. 


154  CONTRACTS    OF    AFFREIGHTMENT.  (Cb.  7 


SAME— EXCEPTION  OP  PERILS  OP  THE  SEA. 

82.  The  term  "perils  of  the  sea"  in  a  bill  of  lad- 
ing ineans  accidents  incident  to  navigation 
which  are  unavoidable  by  the  use  of  ordinary 
care. 

There  is  a  mass  of  learning  and  refinement  of  distinction 
as  to  the  proper  construction  of  that  universal  clause,  "perils 
of  the  sea."  It  means  such  accidents  incident  to  navigation 
as  are  unavoidable  and  are  the  sole  proximate  cause  of  the 
loss.  Mr.  Justice  Woods  rather  too  broadly  defines  the  ex- 
pression as  "all  unavoidable  accidents  from  which  common 
carriers  by  the  general  law  are  not  excused,  unless  they 
arise  from  act  of  God."  1 

The  accident  from  which  a  carrier  is  exempted  under  this 
clause  must  arise  independently  of  the  crew's  acts.  If  their 
negligence  co-operates,  the  carrier  is  responsible.  Herfce 
there  are  a  great  many  decided  cases  on  the  question 
whether  the  proximate  cause  of  the  loss  was  the  act  of  the 
crew  or  a  peril  of  the  sea. 

The  recent  case  of  THE  G.  R.  BOOTH  2  is  an  instructive 
one  on  this  point,  as  it  reviews  the  American  decisions.  In 
it  the  supreme  court  held  that  a  loss  caused  by  an  explo- 
sion of  detonators  which  blew  a  hole  in  the  ship,  and 
let  the  water  rush  in,  was  not  a  peril  of  the  sea;  that  the 
phrase  alluded  to  some  action  of  wind  or  wave,  or  to  in- 
jury from  some  external  object,  and  did  not  cover  an  ex- 
plosion arising  from  the  nature  of  the  cargo ;  and  that  the 
proximate  cause  was  the  explosion,  and  not  the  inrush  of 
the  water. 

To  show  how  narrow  is  the  line  of  demarkation,  the  court 
distinguishes  this  from  the  case  of  Hamilton  v.  Pandorf,3 

§  82.     i  Dibble  v.  Morgan,  1  Woods,  406,  Fed.  Gas.  No.  3,881. 
2  171  U.  S.  450,  19  Sup.  Ct.  9,  43  L.  Ed.  234. 
*  12  App.  Cas.  518. 


§  83)  "charter  parties"  defined.  155 

in  which  rats  had  gnawed  a  lead  pipe,  which  permitted  water 
to  escape  and  cause  damage.  The  house  of  lords  held  that 
this  was  a  peril  of  the  sea.  The  supreme  court  distinguished 
it  on  the  ground  that  the  water  escaped  gradually,  and 
therefore  was  the  proximate  cause. 

At  first  it  was  thought  that  a  collision  caused  by  the 
negligence  of  either  of  the  two  vessels  was  not  a  peril  of 
the  sea,  as  a  human  agency  intervened.  But  the  better 
opinion  seems  to  be  that,  if  the  carrying  ship  is  blameless,  a 
collision  is  a  peril  of  the  sea  as  to  her  and  her  cargo,  even 
though  the  other  ship  was  to  blame.4 

Although  stipulations  for  protecting  the  shipowner  for 
loss  of  goods  carried  on  deck  are  not  rigidly  construed,  yet 
even  there  they  do  not  protect  from  a  loss  caused  by  neg- 
ligence.6 

"CHARTER  PARTIES"  DEFINED. 

83.  When  the  owners  of  a  vessel  hire  her  out,  the 
contract  of  hire  is  called  a  "charter  party," 
and  the  hirer  is  called  a  "charterer." 

There  are  many  different  kinds  of  charter  party  in  use. 
The  owner  hires  his  ship  out  for  a  definite  time,  as  for  a 
month  or  a  year.  This  is  called  a  "time  charter."  *  A 
voyage  charter  is  one  in  which  he  hires  her  out  for  a  defi- 
nite trip,  as,  for  instance,  a  single  trip  between  two  points, 
or  a  round  trip  from  one  port  by  one  or  more  others  back 
to  the  initial  port. 

Charters  vary  also  according  to  the  manner  in  which  the 
hire  is  payable.  A  "lump  sum"  charter,  for  instance,  is  one 
in  which  the  charterer  pays  a  fixed  price  for  the  ship.     The 

«  The  Xantho,  12  App.  Gas.  503. 

b  Compania  de  Navigaelon  La  Flecha  v.  Brauer,  1G8  U.  S.  104,  18 
Sup.  Ct  12,  12  L.  Ed.  .".08. 
i  S3,    i  The  Mary  A.  Randall,  39  C.  C.  A.  335,  98  Fed.  so:.. 


156  CONTRACTS  OF  AFFREIGHTMENT.         (Ch.  7 

owner  gets  his  money  whether  the  charterer  puts  any  cargo 
aboard  or  not.  If  he  can  sublet  room  to  shippers  at  good 
rates,  the  charterer  makes  a  profit;  otherwise,  a  loss.  It 
is  very  much  the  same  transaction  as  renting  a  house  and 
trying  to  sublet  the  rooms. 

A  tonnage  charter  is  where  the  charterer  pays  a  certain 
rate  per  registered  ton,  or  per  ton  of  dead  weight  carrying 
capacity. 

Charters  vary  also  with  the  cargo  to  be  carried.  For 
instance,  there  are  grain  charters,  cotton  charters,  petroleum 
charters,  coal  charters,  charters  for  general  cargo,  and  many 
others.  Though  similar  in  the  main,  each  has  its  own  pe- 
culiar provisions  growing  out  of  the  needs  and  customs  of 
the  particular  business. 

Again,  an  owner  may  charter  his  bare  ship,  leaving  the 
charterer  to  furnish  a  crew,  or  he  may  merely  charter  the 
use  of  the  ship,  furnishing  the  crew  himself.  This  distinc- 
tion is  important  if  a  question  should  arise  whether  the 
owner  or  the  charterer  is  responsible  for  any  tort  of  the 
crew.  If  the  crew  is  employed  by  the  owner,  then  they 
are  his  agents,  and  he  is  responsible  for  their  acts  within 
the  scope  of  their  employment.  If  they  are  employed  by 
the  charterer,  then  he  is  responsible.2 

Charter  parties  are  almost  invariably  made  by  shipbrokers, 
who  keep  on  hand  printed  blanks  of  the  various  kinds,  and 
execute  them  by  telegraphic  or  cable  authority. 

They  are  usually  in  writing,  but  may  be  by  parol.8 
They  have  grown  to  be  very  elaborate  in  their  provisions, 
being  an  evolution  from  experience,  as  suggested  by  dif- 
ficulties actually  arising.  On  the  other  hand,  the  additions 
elicited  by  experience  have  frequently  been  made  by  lay- 
men, who  do  not  always  stop  to  notice  how  the  condition 

2  The  Nicaragua  (D.  C.)  71  Fed.  723;  Bramble  v.  Culmer,  24  C.  C. 
A.  182.  78  Fed.  497. 

8  James  v.  Bropby,  18  C.  C.  A.  49,  71  Fed.  310. 


§    84)  CONSTRUCTION    OF    CHARTER    PARTIES.  157 

harmonizes  with  what  is  already  there.  Hence,  to  the 
lawyers  and  judges,  they  appear  informal  and  inartistic ; 
and,  in  the  case  of  RAYMOND  v.  TYSON,4  the  supreme 
court  so  characterizes  them,  and  says  that  they  are  to  be 
liberally  construed  on  that  account,  thus  placing  them  'in 
the  category  of  legal  instruments  which  are  supposed  to  be 
drawn  by  that  constant  friend  of  the  legal  profession, — 
the  man  who  is  inops  consilii. 


CONSTRUCTION  OF  CHARTER  PARTIES. 

84.  A  charter  party  is  governed  by  the  ordinary 
principles  of  contract  law.  Provisions  which, 
when  violated,  defeat  the  venture,  absolve 
the  injured  party  from  the  contract.  Others, 
not  so  vital,  give,  if  violated,  a  claim  for  dam- 
ages. 

A  charter  party  is,  after  all,  but  an  ordinary  contract, 
and  is  governed  by  the  same  rules  that  apply  in  the  con- 
struction of  ordinary  contracts. 

Special  Provisions  in. 

Perhaps  a  few  illustrations  taken  from  cases  that  have 
gone  to  the  supreme  court  might  be  useful. 

In  the  case  of  LOVVBER  v.  BANGS,1  the  instrument 
contained  a  provision  that  the  vessel  (which,  as  is  usually 
the  case,  was  not  at  the  loading  port  when  the  charter  was 
effected),  should  proceed  to  the  loading  port  "with  all  pos- 
sible dispatch."  She  did  not  do  so.  The  court  held  that, 
on  account  of  the  necessity  of  promptness  in  commercial 
enterprises,  this  provision  was  not  a  collateral  clause,  whose 
breach  would  give  rise  merely  to  an  action  for  damages, 
but  that  it  was  a  warranty,  whose  breach  avoided  the  con- 

*  IT  How.  53,  1.",  L.  Ed.  47. 

§  84.     i  2  WalL  728,  17  L.  Ed.  7G8. 


158  CONTRACTS  OF  AFFREIGHTMENT.  {CK.   7 

tract  and  released  the  charterers.  It  would  also  give  a 
right  of  action  for  damages  against  the  owners.2  And  a 
delay  in  arriving,  which  made  it  so  late  in  the  season  as  to 
prevent  the  charterer  from  obtaining  insurance,  the  vessel's 
agent  having  represented  that  she  would  arrive  in  time, 
absolves  the  charterer.3 

Quite  similar  to  this  was  the  case  of  Davison  v.  Von 
Lingen.4  Here  the  charter  party  contained  a  provision  that 
the  vessel  had  "now  sailed  or  about  to  sail  from  Benizoaf." 
In  fact,  she  was  only  one-third  loaded,  and  did  not  sail  for 
some  time.  The  court  held  that  the  charterer  could  refuse 
to  load  her  on  arrival,  and  could  recover  the  extra  cost  of 
chartering  another  vessel  to  carry  his  cargo.  The  charter 
party  is  given  in  the  opinion. 

In  the  case  of  Watts  v.  Camors,5  the  charterer  agreed  to 
load  a  vessel  of  1,100  tons  or  thereabouts.  Her  actual 
burden  was  1,203  tons.  The  court  held  that  the  charterer 
must  load  her. 

The  John  H.  Pearson  e  was  a  fruit  charter,  in  which  a 
vessel  from  Gibraltar  to  Boston  engaged  to  "take  the  North- 
ern passage."  The  court  held  that  this  was  a  term  of  art, 
and,  if  none  such  was  known,  she  should  go  through  the 
coolest  waters  to  her  destination. 

The  case  of  Culliford  v.  Gomila  7  contains  a  grain  char- 
ter party  in  the  report.  In  it  the  vessel  guarantied  to  take 
10,000  quarters  of  grain.  The  charterers,  however,  did  not 
stipulate  any  definite  day  on  which  she  was  to  enter  upon 
the  charter  party,  or  any  definite  day  when  she  was  to  com- 
mence loading.  When  loaded  she  contained  only  9,633 
quarters,  and  the  parties  to  whom  the  charterers  had  sold 

2  Sanders  v.  Munson,  20  C.  C.  A.  581,  74  Fed.  649. 

«  Oades  v.  Pfohl  (D.  C.)  104  Fed.  998. 

*  113  U.  S.  40,  5  Sup.  Ct.  346.  28  L.  Ed.  885. 

b  115  U.  S.  353,  6  Sup.  Ct.  91,  29  L.  Ed.  406. 

e  121  U.  S.  469,  7  Sup.  Ct.  1008,  30  L.  Ed.  979. 

1  128  U.  S.  135,  9  Sup.  Ct.  50,  32  L.  Ed.  381. 


§   85)  CONDITIONS    IMPLIED    IN    CHARTER    PARTIES.  15§ 

the  full  cargo  of  10,000  quarters  refused  to  take  it,  the 
market  having  fallen.  Afterwards,  the  ship,  by  removing 
more  coal  and  water  ballast,  took  the  full  amount.  The 
court  held  that  she  had  fulfilled  her  contract,  and  was  not 
liable  to  the  charterers   for  their  loss. 

In  The  Gazelle,8  the  charter  party  contained  a  clause  that 
the  vessel  should  be  ordered  to  a  "safe  *  *  *  port,  or 
as  near  thereto  as  she  can  safely  get,  and  always  lay  and 
discharge  afloat."  The  charterers  ordered  her  to  a  port  hav- 
ing a  bar  at  its  mouth,  which  she  could  not  cross,  the  only 
anchorage  outside  the  bar  being  in  the  open  sea.  The  mas- 
ter refused  to  go.  The  court  upheld  him,  and  ruled  also 
that  evidence  of  a  custom  to  anchor  and  discharge  outside 
the  bar  was  inadmissible  against  the  express  provisions  of 
the  contract.0 

CONDITIONS     IMPLIED    IN    CHARTER    PARTIES    OF 
SEAWORTHINESS  AND  AGAINST  DEVIATION. 

85.  In  contracts  of  charter  party  there  is  an  implied 
condition  of  seaworthiness  and  against  devia- 
tion. 

Although  the  language  in  the  forms  now  in  use  frequently 
covers  it,  yet  there  are  certain  conditions  implied  in  a  char- 
ter party,  in  the  absence  of  express  provisions  to  the  con- 
trary.    They  are : 

1.  That  the  ship  is  seaworthy. 

Charter  parties  usually  contain  a  provision  that  the  ves- 
sel is  "tight,  stanch,  and  strong,  and  in  every  way  fitted 
for  the  voyage."  This  warranty  of  seaworthiness  is  a  very 
rigid  one,  and  means  that  the  vessel  is  actually  seaworthy, 
not  merely  that  her  owner  has  done  his  best  to  make  her 

•  128  I".  S.   171.  !i  Sup.  Ct.  139,  32  L.  Ed.  49G. 

•  The  Benlarig  (D.  C.)  'J'J  Fed.  L'OS. 


1G0  CONTRACTS    OF    AFFREIGHTMENT.  (Ch.- 7 

so.  It  applies  not  only  to  the  beginning  of  loading,  but 
to  the  time  of  sailing  as  well,  and  the  vessel  will  be  liable 
for  damages  caused  by  unseaworthiness  at  starting,  or  by 
unseaworthiness  on  the  voyage  from  causes  not  covered 
by  exceptions,  or  from  causes  which  he  could  repair.  Per- 
haps an  illustration  or  two  will  make  this  plainer. 

In  THE'  CALEDONIA,1  a  vessel  with  a  cattle  cargo 
broke  her  shaft  at  sea,  thereby  greatly  lengthening  the 
voyage,  and  causing  much  loss  in  their  quality.  The  court 
held  the  vessel  responsible,  though  the  breakage  arose  fro'm 
a  latent  defect. 

In  STEEL  v.  STATE  LINE  S.  S.  CO.,2  a  lower  port- 
hole was  left  insufficiently  fastened.  Sea  water  came  through 
and  injured  the  cargo.  The  court  held  that  if  this  was  the 
condition  at  sailing  it  was  a  violation  of  the  warranty  of 
seaworthiness.     This  case  is  specially  instructive. 

In  Cohn  v.  Davidson,3  the  vessel  was  seaworthy  when 
she  commenced  to  load,  but  unseaworthy  when  she  sailed. 
The  court  held  that  this  was  a  breach  of  the  warranty. 

In  Worms  v.  Storey,4  a  vessel  which  was  seaworthy  at 
starting  became  unseaworthy  during  the  voyage  from  causes 
excepted  in  the  contract.  But  she  put  into  port,  where  she 
could  have  repaired,  and  did  not.  She  was  held  liable  for 
a  breach  of  the  warranty. 

This  doctrine  applies  not  only  to  structural  defects,  but 
to  deficiencies  of  equipment,  as,  for  instance,  an  insufficient 
supply  of  coal  for  the  voyage,  or  insufficient  ballast.5  But 
if  the  charterers  examine  the  vessel  before  chartering  her, 
and  accept  her,  they  cannot  complain  of  such  defects  as  they 

§  85.     i  157  U.  S.  124,  15  Sup.  Ct.  537,  39  L.  Ed.  644. 
2  3  App.  Cas.  72. 
s  2  Q.  B.  Div.  455. 
*  11  Exch.  427. 

e  The  Yortigern  [1899]  Prob.  Div.  140;  Weir  v.  Steamship  Co. 
[1900]  App.  Cas.  525. 


§    86)  CANCELLATION    CLAUSE    IN    CHARTER    PARTIES.  161 

could  reasonably  have  discovered,  though  they  still  may 
complain  of  latent  defects.8 

2.  That  the  vessel  will  commence  and  prosecute  the  voy- 
age with  reasonable  diligence  and  without  unnecessary  devi- 
ation. 

Charter  parties  usually  cover  this  by  a  stipulation  that 
the  vessel,  if  not  at  the  loading  port,  shall  "at  once  sail 
and  proceed"  thereto,  and  shall  when  loaded  "proceed  with 
all  practicable  dispatch."  If  she  fails  to  do  so  in  the  first 
instance,  the  charterer  may,  as  decided  in  the  cases  of  L,ow- 
ber  v.  Bangs  and  Davison  v.  Von  Lingen,  above  cited,  re- 
fuse to  load  her,  and  have  his  action  for  damages.  If  by 
excepted  perils  she  is  so  delayed  that  the  commercial  enter- 
prise is  frustrated,  the  charterer  may  refuse  to  load  her, 
but  in  such  case  he  would  have  no  action  for  damages.7 
If  by  deviation  the  charterer  suffers  loss,  he  can  sue  for 
damages.8  The  provisions  of  a  charter  party  regulate  the 
respective  rights  and  duties  of  the  parties  before  loading, 
during  loading,  during  the  voyage,  and  in  discharging. 

CANCELLATION  CLAUSE  IN  CHARTER  PARTIES. 

86.  If  the  vessel  does  not  arrive  by  the  date  speci- 
fied, the  charterer  may  refuse  to  load,  even 
though  the  delay  was  due  to  excepted  perils. 
If  she  does  not  arrive  -within  a  reasonable 
time,  she  is  liable  for  damages,  even  though 
she  arrives  before  the  canceling  date. 

The  ship's  first  duty  is  to  proceed  to  the  loading  port 
with  reasonable  diligence.  To  enforce  this  obligation,  a 
clause  called  the  "cancellation  clause"  is  inserted.  It  pro- 
vides that,  if  the  vessel  does  not  arrive  at  the  loading  port 

«  Waterhouse  v.  Mining  Co.,  38  C.  C.  A.  281,  97  Fed.  4G6. 
t  Jackson  v.  Insurance  Co.,  L.  K.  10  C.  P.  125. 
t  Scaramanga  v.  Stamp,  5  C.  P.  DIv.  205. 

hl'giii;s,ad.-ii 


162  CONTRACTS    OF    AFFREIGHTMENT.  (Ch.  7 

ready  to  load  by  a  given  date,  all  her  holds  being  clear, 
the  charterers  may  cancel.  Under  this  the  charterers  may 
cancel,  even  though  the  delay  was  caused  by  excepted  perils.1 

If  the  canceling  clause  is  worded  as  above,  she  must  not 
only  arrive  by  the  canceling  date,  but  she  must  also  be  ready 
for  cargo  by  that  date.  For  instance,  her  ballast  and  dun- 
nage must  be  out,  and  all  the  spaces  to  which  the  charterer 
is  entitled  must  be  cleared  from  the  effects  of  former  car- 
goes and  ready  for  use.  She  must  be  in  such  condition  as 
to  satisfy  the  underwriter's  inspector  and  all  reasonable  re- 
quirements for  avoiding  injury  to  cargo.2 

As  this  clause  is  for  the  benefit  of  the  charterer,  it  does 
not  exempt  the  ship  from  her  obligation  to  proceed  to  the 
loading  port  with  reasonable  dispatch.  If  she  loiters  by 
the  wayside,  she  is  responsible  to  the  charterer  in  damages, 
even  though  she  should  arrive  before  the  canceling  date.3 

The  charter  party  usually  provides  that  the  vessel  can 
only  be  ordered  to  a  safe  port,  where  she  can  lie  always 
afloat.  This  provision  is  common  both  to  loading  and  dis- 
charging. It  means  safely  afloat  when  loaded.  Under  it  a 
ship  is  not  required  to  lighter  her  cargo,  or  lie  at  a  danger- 
ous anchorage.* 

LOADING  UNDER  CHARTER  PARTIES. 

87.  Delay  beyond  the  time  allowed  entitles  the  ship 
to  demurrage.  Sundays  and  legal  holidays 
are  then  counted  under  the  ordinary  form 
of  charter  party. 

i  86.     i  Smith  v.  Dart,  14  Q.  B.  Div.  105. 

2  Groves  v.  Volkart,  1  Cab.  &  E.  309;  Crow  v.  Myers  (D.  C.)  41 
Fed.  806;  Stanton  v.  Richardson,  45  Law  J.  Exch.  78;  Disney  v. 
Furness.  Withy  &  Co.  (D.  C.)  79  Fed.  810. 

»  The  March  (D.  C.)  25  Fed.  106;  McAndrew  v.  Adams,  1  Bing.  N. 
C.  29,  27  E.  0.  L  297. 

*  The  Gazelle,  128  U.  S.  474,  9  Sup.  Ct.  139,  32  L.  Ed.  496;  Shield  v. 
Wilkin,  £>  Exch.  304;  The  Alhambra,  6  Prob.  Div.  68. 


§    87)  LOADING    UNDER   CHARTER    PARTIES.  163 

The  charter  party  provides  that  the  charterers  have  a  cer- 
tain number  of  days  for  loading,  Sundays  and  legal  holi- 
days excepted,  and  must  pay  demurrage  at  a  certain  rate 
per  ton  per  day  if  vessel  is  longer  detained.  If  the  clause  is 
worded  in  this  manner,  demurrage  is  payable  for  Sundays 
and  legal  holidays.1 

The  reason  why  Sundays  and  holidays  are  excluded  in 
counting  the  lay  days,  but  included  in  estimating  the  de- 
murrage, is  that  in  such  port  work  they  cannot  be  used. 
But  demurrage  is  an  allowance  for  the  time  during  which 
the  ship  would  otherwise  be  on  a  voyage,  and,  as  she  does 
not  stop  her  voyage  for  Sundays,  every  day  should  count. 
The  same  reasoning  applies  to  dispatch  money,  which  is 
an  allowance  often  made  the  charterer  for  loading  in  less 
time  than  that  permitted  by  the  charter. 

The  term  "working  days"  means  all  days  except  Sundays 
and  legal  holidays,  and  does  not  cover  days  during  which 
the  weather  is  too  bad  to  permit  work.2 

Under  lump-sum  charters,  the  most  fruitful  source  of 
controversy  is  as  to  the  spaces  on  the  ship  which  the  char- 
terer may  fill.  He  is  entitled  to  all  spaces  where  cargo  can 
be  put,  except  the  spaces  necessary  for  the  crew,  coal, 
tackle,  apparel,  provisions,  and  furniture.  The  variety  in 
the  build  of  vessels  renders  it  impossible  to  lay  down  any 
general  rule.  A  good  example  of  such  controversies  is  the 
case  of  Crow  v.  Myers.3 

The  loading  is  largely  governed  by  the  custom  of  the 
port,  except  where  inconsistent  with  the  written  contract. 

5  87.  i  Brown  v.  Johnson,  10  Mees.  &  W.  331;  Red  "R"  S.  S.  Co. 
v.  Transport  Co.,  33  C.  C.  A.  432.  91  Fed.  168. 

2  Sorcnsen  v.  Keyser,  2  0.  C.  A.  650,  52  Fed.  163;  Wood  v.  Keyser 
<D.  C.)  84  Fed.  688;  Id.,  31  C.  C.  A.  358,  87  Fed.  1007. 

»  (D.  C.)  41  Fed.  806. 


164  CONTRACTS    OF   AFFREIGHTMENT.  (Ch.  7 

EXECUTION    OF     NECESSARY   DOCUMENTS    UNDER 
CHARTER  PARTIES. 

88.  The  master   must   sign   the  bills  of  lading  and 
other  necessary  documents. 

Most  charter  parties  require  the  master  to  sign  bills  of  lad- 
ing as  presented  by  the  charterer  for  the  different  parts  of 
the  cargo  as  received  on  board,  and  drafts  for  the  disburse- 
ments made  by  the  charterers  to  pay  the  vessel's  bills  when 
in  port,  and  for  the  difference  between  the  charter  party 
freight  and  the  freight  as  per  bills  of  lading.  All  these  are 
important  documents.  The  amount  necessary  to  clear  a 
single  large  ship  runs  up  into  the  tens  of  thousands.  As 
charterers  with  a  large  business  may  have  several  on  the 
berth  loading  at  once,  the  capital  necessary  for  their  use 
would  be  enormous.  Hence  these  documents  are  needed 
by  him  and  his  shippers  for  obtaining  discounts  from  his 
banker.  Thus,  a  man  who  sees  an  opportunity  to  ship  a 
thousand  bales  of  cotton  to  Liverpool,  where  he  can  sell  it 
at  an  advance,  can  buy  it  on  this  side,  engage  freight  room 
from  some  charterer  who  has  a  ship  in  port  or  expected,  get 
a  bill  of  lading  for  it  to  order,  draw  on  his  Liverpool  con- 
signee, attaching  the  bill  of  lading  to  the  draft,  and  get  his 
draft  at  once  discounted  at  his  bank. 

Under  the  usage  of  trade,  the  freight  is  payable  at  the 
port  of  discharge,  and  is  collected  by  the  vessel  owner.  If 
the  charterer  has  sublet  the  room  to  different  shippers  for 
more  than  he  has  agreed  to  pay  the  owner  for  the  use  of 
his  ship,  the  owner  will  owe  him  the  difference.  This  is 
calculated  at  the  loading  port  on  the  completion  of  the 
loading,  and  the  master  gives  the  charterer  a  draft  on  his 
owners  for  the  amount.  If  the  cargo  has  started  from  in- 
land points,  and  the  charterer  has  to  pay  accrued  charges 
of  previous  carriers  (for  the  last  carrier  pays  the  charges 
of  the  previous  carriers),  the  draft  may  be  very  great ;   but, 


§    89)  CESSER    CLAUSE    IN    CHARTER    PARTIES.  165 

if  it  all  starts  from  the  loading  port,  so  narrow  are  the 
margins  of  profit  in  modern  trade  that  the  draft  is  small. 
A  recalcitrant  captain  may  be  compelled  to  sign  these  im- 
portant papers.1 


CESSER  CLAUSE  IN  CHARTER  PARTIES. 

89.  Under  the  cesser  clause,  the  settlement  between 
ship  and  charterer  must  be  made  at  the  load- 
ing port,  and  the  shipper  looks  to  the  ship 
alone,  and  not  to  the  charterer. 

A  curious  provision  in  modern  charter  parties  is  the 
clause  known  as  the  "cesser"  clause.  Its  usual  language  is 
"owner  to  have  a  lien  on  the  cargo  for  freight,  dead  freight, 
and  demurrage,  charterer's  liability  to  cease  when  cargo 
shipped."  It  is  strictly  construed.  It  does  not  operate  to 
release  the  ship,  and  it  releases  the  charterer  from  liability 
for  future  occurrences  alone,  not  for  past  occurrences.1 

The  object  is  to  end  the  charterer's  liability  at  the  loading 
port,  and  save  him  from  a  lawsuit  at  a  distant  point.  To 
that  end  the  bills  of  lading  are  given  direct  by  the  ship  to 
the  shipper,  and  all  disputes  as  to  demurrage,  dead  freight, 
etc.,  at  the  loading  port,  are  settled  before  the  vessel  sails, 
while  the  lien  given  to  the  owner  protects  his  freight  or 
demurrage  at  the  port  of  discharge.  Hence,  if  the  owner 
gives  the  shipper  a  clean  bill  of  lading  at  the  loading  port, 
he  cannot  hold  the  goods  for  demurrage ;  for  the  shipper 
is  not  bound  by  the  charter  party.  He  must  collect  his 
demurrage,  or  reserve  a  lien  for  it,  by  proper  language,  in 
his  bill  of  lading. 

§  88.     i  The  Joseph,  2  Hughes,  58,  Fed.  Cas.  No.  11.730. 

§  89.  i  KISH  v.  CORY,  L.  R.  10  Q.  B.  553;  The  Iona,  26  C.  C.  A. 
261,  80  Fed.  933;  Schmidt  v.  Keyser,  32  C.  C.  A.  121,  88  Fed.  799; 
Grossman  v.  Bun-Ill,  179  U.  S.  100,  21  Sup.  Ct.  38,  45  L.  Ed.  106. 


1G6  THE    HAKTER    ACT.  (Ch.   8 


CHAPTER  VIII. 

OF  WATER  CARRIAGE  AS  AFFECTED  BY  THE  HARTER  ACT 
OF  FEBRUARY  13,  1893  (27  Stat.  445). 

80-91.  Policy  of  Act. 

92.  Act  Applicable  Only  between  Vessel  Owner  and  Shipper. 

93.  Vessels  and  Voyages  to  which  Act  is  Applicable. 

94.  Distinction  between  Improper  Loading  and  Negligent  Naviga- 

tion. 

95.  Necessity  of  Stipulation  to  Reduce  Liability  for  Unseaworthi- 

ness. 

POLICY  OF  ACT. 

90.  The  act  materially  modifies  the  law  relating  to 

the  carriage  of  goods. 

91.  It  forbids   any    stipulation   against    negligence 

in  preparation  for  the  voyage  or  in  delivery, 
or  unseaworthiness  below  the  measure  of 
due  diligence. 

The  discussion  in  the  preceding  chapter  has  been  as  to 
the  liability  of  carriers  under  the  general  decisions  of  the 
courts,  independent  of  statute.  As  has  been  seen,  stipu- 
lations against  negligence  are  forbidden  by  the  preponder- 
ance of  American  decisions,  but  allowed  by  the  English  de- 
cisions. As  a  large  proportion  of  the  foreign  carrying  trade 
is  conducted  in  English  vessels,  the  effect  of  the  English 
decisions  is  to  allow  vessel  owners  to  fritter  away  their 
liability  by  stipulation,  and  this  placed  American  vessel  own- 
ers at  a  disadvantage  in  the  close  competition  between  them. 
The  Harter  act  was  a  compromise  between  the  shipping 
and  carrying  interests,  and  though  it  exempts  carrying  ves- 
sels from  liability  for  many  acts  of  negligence  for  which 
they  were    responsible    formerly,  and    against  which    they 


§§    90-91)  POLICY    OF    ACT.  167 

could  not  stipulate,  it  at  the  same  time  works  in  favor  of 
the  shipper  by  forbidding  many  stipulations  which  under 
the  English  law  were  valid.  The  general  policy  of  the 
law  is  that  the  vessel  owner  must  take  the  care  required  of 
experts  in  that  business  in  all  matters  relating  to  the  load- 
ing, stowage,  custody,  care,  and  proper  delivery  of  the  goods 
intrusted  to  it,  and  must  exercise  due  diligence  to  make 
the  vessel  seaworthy  in  all  the  particulars  which  have  been 
held  to  constitute  seaworthiness ;  and  that,  if  these  re- 
quirements are  met  entirely,  neither  the  vessel  nor  her  own- 
ers shall  be  responsible  even  for  faults  or  errors  in  naviga- 
tion, nor  for  such  accidents  as  have  been  held  by  the  Ameri- 
can decisions  to  be  validly  stipulated  against  in  bills  of  lad- 
ing. 

The  full  text  of  the  act  is  as  follows : 
"Chapter  105.    An  act  relating  to  navigation  of  vessels,  bills 
of  lading,  and  to  certain  obligations,  duties,  and  rights  in 
connection  with  the  carriage  of  property. 

"Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled, 
that  it  shall  not  be  lawful  for  the  manager,  agent,  master 
or  owner  of  any  vessel  transporting  merchandise  or  prop- 
erty from  or  between  ports  of  the  United  States  and  foreign 
ports  to  insert  in  any  bill  of  lading  or  shipping  document 
any  clause,  covenant,  or  agreement  whereby  it,  he,  or  they 
shall  be  relieved  from  liability  for  loss  or  damage  arising 
from  negligence,  fault,  or  failure  in  proper  loading,  stow- 
age, custody,  care,  or  proper  delivery  of  any  and  all  lawful 
merchandise  or  property  committed  to  its  or  their  charge. 
Any  and  all  words  and  clauses  of  such  import  inserted  in 
bills  of  lading  or  shipping  receipts  shall  be  null  and  void 
and  of  no  effect. 

"Sec.  2.  That  it  shall  not  be  lawful  for  any  vessel  trans- 
porting merchandise  or  property  from  or  between  ports  of 
the  United  States  of  America  and  foreign  ports,  her  owner, 
master,  agent,  or  manager,  to  insert  in  any  bill  of  lading 


1(')8  THE    HARTER    ACT.  (Ch.   8 

or  shipping  document  any  covenant  or  agreement  whereby 
the  obligation  of  the  owner  or  owners  of  said  vessel  to 
exercise  due  diligence,  properly  equip,  man,  provision,  and 
outfit  said  vessel,  and  to  make  said  vessel  seaworthy  and 
capable  of  performing  her  intended  voyage,  or  whereby  the 
obligations  of  the  master,  officers,  agents,  or  servants  to 
carefully  handle  and  stow  her  cargo  and  to  care  for  and 
properly  deliver  the  same,  shall  in  any  wise  be  lessened, 
weakened  or  avoided. 

"Sec.  3.  That  if  the  owner  of  any  vessel  transporting  mer- 
chandise or  property  to  or  from  any  port  in  the  United 
States  of  America  shall  exercise  due  diligence  to  make  the 
said  vessel  in  all  respects  seaworthy  and  properly  manned, 
equipped  and  supplied,  neither  the  vessel,  her  owner  or  own- 
ers, agent  or  charterers,  shall  become  or  be  held  responsible 
for  damages  or  loss  resulting  from  faults  or  errors  in  navi- 
gation or  in  the  management  of  said  vessel,  nor  shall  the 
vessel,  her  owner  or  owners,  charterers,  agent,  or  master 
be  held  liable  for  losses  arising  from  dangers  of  the  sea  or 
other  navigable  waters,  acts  of  God,  or  public  enemies,  or 
the  inherent  defect,  quality  or  vice  of  the  thing  carried,  or 
from  insufficiency  of  package,  or  seizure  under  legal  process, 
or  for  loss  resulting  from  any  act  or  omission  of  the  ship- 
per or  owner  of  the  goods,  his  agent  or  representative,  or 
from  saving  or  attempting  to  save  life  or  property  at  sea, 
or  from  any  deviation  in  rendering  such  service. 

"Sec.  4.  That  it  shall  be  the  duty  of  the  owner  or  owners, 
masters,  or  agent  of  any  vessel  transporting  merchandise 
or  property  from  or  between  ports  of  the  United  States 
and  foreign  ports,  to  issue  to  shippers  of  any  lawful  mer- 
chandise a  bill  of  lading  or  shipping  document,  stating, 
among  other  things,  the  marks  necessary  for  identification, 
number  of  packages  or  quantity,  stating  whether  it  be  car- 
rier's or  shipper's  weight,  and  apparent  order  or  condition 
of  such  merchandise  or  property  delivered  to  and  received 
by  the  owner,  master,  or  agent  of  the  vessel  for  transporta- 


§    92)       APPLICABLE  ONLY  BETWEEiN  OWNER  AND  SHIPPER.        169 

tion,  and  such  document  shall  be  prima  facie  evidence  of 
the  receipt  of  the  merchandise  therein  described. 

"Sec.  5.  That  for  a  violation  of  any  of  the  provisions  of 
this  act  the  agent,  owner,  or  master  of  the  vessel  guilty  of 
such  violation,  and  who  refuses  to  issue  on  demand  the 
bill  of  lading  herein  provided  for,  shall  be  liable  to  a  fine  not 
exceeding  two  thousand  dollars.  The  amount  of  the  fine 
and  costs  for  such  violation  shall  be  a  lien  upon  the  vessel 
whose  agent,  owner,  or  master  is  guilty  of  such  violation, 
and  such  vessel  may  be  libelled  therefor  in  any  district  court 
of  the  United  States  within  whose  jurisdiction  the  vessel  may 
be  found.  One-half  of  such  penalty  shall  go  to  the  party 
injured  by  such  violation  and  the  remainder  to  the  govern- 
ment of  the  United  States. 

"Sec.  6.  That  this  act  shall  not  be  held  to  modify  or  repeal 
sections  forty-two  hundred  and  eighty-one,  forty-two  hun- 
dred and  eighty-two,  and  forty-two  hundred  and  eighty- 
three  of  the  Revised  Statutes  of  the  United  States,  or  any 
other  statutes  defining  the  liability  of  vessels,  their  owners 
or  representatives. 

"Sec.  7.  Sections  one  and  four  of  this  act  shall  not  apply 
to  the  transportation  of  live  animals. 

"Sec.  8.  This  act  shall  take  effect  from  and  after  the  first 
day  of  July,  eighteen  hundred  and  ninety-three.  Approved 
February  13,  1893." 

ACT  APPLICABLE  ONLY  BETWEEN  VESSEL 
OWNER  AND    SHIPPER. 

92.  The  act  is  intended  only  to  regulate  the  rela- 
tions between  vessel  and  shipper,  and  not  to 
affect  the  relations  of  either  to  third  parties. 

In  referring  to  the  act  generally,  it  is  first  to  be  observed, 
when  the  title  and  all  of  its  provisions  are  taken  together, 
that  it  is  only  intended  to  affect  the  relations  between  ves- 
sel   owner    and    shipper.     Accordingly    in    THE    DELA- 


170  THE    BARTER    ACT.  (Ch.   S 

WARE,1  which  was  a  case  of  a  collision  between  two  ves- 
sels, in  which  the  wrongdoing  vessel  claimed  that  the 
general  language  of  the  third  section  of  the  act  exempted 
it  from  liability  to  the  other  vessel,  the  court  held  that  such 
was  not  its  intention;  that  it  was  not  at  all  intended  to 
affect  the  relations  of  any  other  parties  than  shipper  and 
carrier. 

As  to  the  general  policy  of  the  act,  the  supreme  court 
in  its  opinion  used  the  following  language:  "It  is  entirely 
clear,  however,  that  the  whole  object  of  the  act  is  to  modify 
the  relations  previously  existing  between  the  vessel  and  her 
cargo.  This  is  apparent  not  only  from  the  title  of  the  act, 
but  from  its  general  tenor  and  provisions,  which  are  evidently 
designed  to  fix  the  relations  between  the  cargo  and  the  ves- 
sel, and  to  prohibit  contracts  restricting  the  liability  of  the 
vessel  and  owners  in  certain  particulars  connected  with  the 
construction,  repair,  and  outfit  of  the  vessel,  and  the  care 
and  delivery  of  the  cargo.  The  act  was  an  outgrowth  of 
attempts,  made  in  recent  years,  to  limit,  as  far  as  possible, 
the  liability  of  the  vessel  and  her  owners,  by  inserting  in 
bills  of  lading  stipulations  against  losses  arising  from  un- 
seaworthiness, bad  stowage,  and  negligence  in  navigation, 
and  other  forms  of  liability,  which  had  been  held  by  the 
courts  of  England,  if  not  of  this  country,  to  be  valid  as  con- 
tracts, and  to  be  respected  even  when  they  exempt  the  ship 
from  the  consequences  of  her  own  negligence.  As  deci- 
sions were  made  by  the  courts  from  time  to  time,  holding 
the  vessel  for  nonexcepted  liabilities,  new  clauses  were  in- 
serted in  the  bills  of  lading  to  meet  these  decisions,  until  the 
common-law  responsibility  of  carriers  by  sea  had  been  frit- 
tered away  to  such  an  extent  that  several  of  the  leading- 
commercial  associations,  both  in  this  country  and  in  Eng- 
land, had  taken  the  subject  in  hand,  and  suggested  amend- 
ments to  the  maritime  law  in  line  with  those  embodied  in  the 

$  92.     i  1G1  U.  S.  459,  16  Sup.  Ct.  516,  40  L.  Ed.  771. 


§    92)       APPLICABLE  ONLY  BETWEEN  OWNER  AND  SHIPPER.         171 

Harter  act.  The  exigencies  which  led  to  the  passage  of 
the  act  are  graphically  set  forth  in  a  petition  addressed  by 
the  Glasgow  Corn  Trade  Association  to  the  Marquis  of 
Salisbury,  and  embodied  in  a  report  of  the  committee  on 
interstate  and  foreign  commerce  of  the  house  of  representa- 
tives." 

In  the  later  case  of  The  Irrawaddy,2  the  court  uses  the 
following  language  in  reference  to  the  purpose  of  the  act : 
"Plainly,  the  main  purposes  of  the  act  were  to  relieve  the 
shipowner  from  liability  for  latent  defects,  not  discoverable 
by  the  utmost  care  and  diligence,  and,  in  the  event  that  he 
has  exercised  due  diligence  to  make  his  vessel  seaworthy, 
to  exempt  him  and  the  ship  from  responsibility  for  damage 
or  loss  resulting  from  faults  or  errors  in  navigation  or  in 
the  management  of  the  vessel.  But  can  we  go  further,  and 
say  that  it  was  the  intention  of  the  act  to  allow  the  owner 
to  share  in  the  benefits  of  a  general  average  contribution 
to  meet  losses  occasioned  by  faults  in  the  navigation  and 
management  of  the  ship?  Doubtless,  as  the  law  stood 
before  the  passage  of  the  act,  the  owner  could  not  contract 
against  his  liability  and  that  of  his  vessel  for  loss  occasioned 
by  negligence  or  fault  in  the  officers  and  crew,  because  such 
a  contract  was  held  by  the  federal  courts  to  be  contrary  to 
public  policy,  and,  in  this  particular,  the  owners  of  Ameri- 
can vessels  were  at  a  disadvantage,  as  compared  with  the 
owners  of  foreign  vessels,  who  can  contract  with  shippers 
against  any  liability  for  negligence  or  fault  on  the  part  of 
the  officers  and  crew.  This  inequality,  of  course,  operated 
unfavorably  on  the  American  shipowner,  and  congress 
thought  fit  to  remove  the  disadvantage,  not  by  declaring 
that  it  should  be  competent  for  the  owners  of  vessels  to  ex- 
empt themselves  from  liability  for  the  faults  of  the  master 
and  crew  by  stipulations  to  that  effect  contained  in  bills  of 
lading,  but  by  enacting  that,  if  the  owners  exercised  due  dili- 

»  171  U.  8.  1ST,  18  Sup.  Ot  831,  43  L.  Ed.  130. 


172  THE    HARTER    ACT.  (Cll.   8 

gence  in  making  their  ships  seaworthy  and  in  duly  manning 
and  equipping  them,  there  should  be  no  liability  for  the 
navigation  and  management  of  the  ships,  however  faulty. 
Although  the  foundation  of  the  rule  that  forbade  shipown- 
ers to  contract  for  exemption  from  liability  for  negligence 
in  their  agents  and  employes  was  in  the  decisions  of  the 
courts  that  such  contracts  were  against  public  policy,  it 
was  nevertheless  competent  for  congress  to  make  a  change 
in  the  standard  of  duty,  and  it  is  plainly  the  duty  of  the 
courts  to  conform  in  their  decisions  to  the  policy  so  de- 
clared." 

This  case  also  illustrates  the  doctrine  that  the  act  was 
not  intended  to  affect  the  rights  of  the  vessel  to  third  par- 
ties. The  vessel  had  met  with  a  disaster  from  some  fault 
in  navigation  of  her  crew,  and  the  vessel  owner  contended 
that,  as  he  was  no  longer  liable  under  the  act  for  the  negli- 
gence of  his  crew  in  this  respect,  he  ought  to  be  entitled 
to  recover  against  the  cargo  owner  in  general  average  for 
such  loss.  The  supreme  court,  however,  held  that  it  did 
not  give  him  the  right  to  assert  a  claim  for  general  average 
against  the  cargo  arising  out  of  the  negligence  of  his  own 
crew. 

VESSELS  AND  VOYAGES  TO  WHICH  ACT   IS  APPLI- 
CABLE. 

93.  The  test  as  to  vessels  which  come  under  this 
act  is  not  based  upon  their  nationality,  but 
upon  their  voyages. 

In  the  first  two  sections,  the  voyages  covered  by  the  act 
are  those  between  ports  of  the  United  States  and  foreign 
countries,  and,  if  the  voyage  in  question  is  between  these 
ports,  the  act  applies  both  to  American  and  foreign  vessels.1 

§  93.  i  The  Chattahoochee,  173  U.  S.  540,  19  Sup.  Ct.  491,  43  L. 
Ed.  801;  Knott  v.  Botany  Worsted  Mills,  179  U.  S.  69,  21  Sup.  Ct. 
30,  45  L.  Ed.  90. 


§    94)       IMPROPER  LOADING  AND   NEGLIGENT  NAVIGATION.  173 

These  sections,  therefore,  in  the  cases  to  which  they  ap- 
plied, put  American  and  foreign  vessels  on  an  exact  equal- 
ity; but  it  was  necessary  to  go  further  than  this.  Had  the 
law  stopped  at  that  point,  American  vessels  in  foreign  ports 
would  have  had  a  great  advantage  over  American  vessels 
in  the  coasting  trade,  as  the  latter  could  not  have  stipulated 
against  liability.  Hence  the  third  section,  which  exempts 
vessels  from  negligence  in  navigation  and  from  liability,  ir- 
respective of  negligence  for  perils  of  the  sea  and  other  par- 
ticulars which  common  carriers  could  stipulate  against,  ap- 
plies not  only  to  voyages  between  American  and  foreign 
ports,  but  to  all  voyages  from  American  ports,  even  though 
to  other  American  ports.2 

Nor  was  the  act  intended  to  apply  to  any  but  carriers  of 
goods.     Passenger  carriers  are  not  affected  by  it.8 

DISTINCTION    BETWEEN    IMPROPER  LOADING  AND 
NEGLIGENT  NAVIGATION. 

94.  Independent  of  stipulation,  the  act  exempts  the 
vessel  owner  from,  the  consequences  of  neg- 
ligent navigation  and  other  grounds  of  lia- 
bility against  -which  he  could  contract  under 
American  lav/. 

The  main  questions  under  the  act  have  arisen  in  connec- 
tion with  the  first  three  sections.  Its  general  scheme  is  to 
make  the  vessel  liable  for  faults  in  connection  with  the 
ordinary  shipment  and  stowage  of  the  cargo,  but  to  allow  her 
to  exempt  herself  from  liability  for  mere  negligence  in  navi- 
gation after  the  voyage  commences.  It  is  not  always  easy 
to  draw  the  line  between  the  two  classes. 

2  The  E.  A.  Shores,  Jr.  (D.  C.)  73  Fed.  342;  In  re  Piper  Aden  Good- 
all  Co.  (D.  C.)  SG  Fed.  G70. 

Moses  v.  racket  Co.  (D.  C.)  88  Fed.  329;    Id.,  34  C.  C.  A.  687,  92 
Fed.  1021. 


174  THE    HARTER    ACT.  (Ch.   8 

In  the  case  of  Calderon  v.  Steamship  Co.,1  a  vessel  on  a 
voyage  from  New  York  to  certain  West  India  ports  put 
some  goods  designed  for  one  port  in  a  compartment  be- 
neath goods  designed  for  a  second  port.  Hence,  when  she 
reached  the  first  port,  the  goods  could  not  be  found,  and 
were  carried  past  their  destination.  At  the  second  port  they 
were  found,  but  the  vessel  came  back  on  her  trip  to  New 
York,  and  the  goods  were  lost.  The  court  held  that  this 
was  not  a  fault  of  navigation,  but  a  fault  in  proper  delivery, 
and  that,  therefore,  the  vessel  was  liable,  and  the  bill  of 
lading  could  not  stipulate  against  such  an  act. 

In  The  Frey,2  some  glycerine  was  so  loosely  stowed  that 
it  rolled  around  in  rough  weather,  and  injured  the  other 
cargo.    The  vessel  was  held  liable. 

In  the  case  of  The  Kate,3  the  crew,  while  loading  in  port, 
left  out  several  stanchions,  intended  to  support  part  of  one 
of  the  decks,  and  piled  up  on  the  remaining  stanchion  an 
unusual  load,  and  the  vessel  was  in  this  condition  when  she 
sailed.  The  court  held  that  this  was  not  a  fault  in  naviga- 
tion, and  that  the  vessel  was  liable. 

In  The  Colima,4  the  vessel  was  so  loaded  that  she  was 
crank  in  bad,  though  not  extraordinary,  weather.  She  was 
held  liable. 

In  the  case  of  The  Whitlieburn,5  it  was  held  that  prop- 
erly ballasting  the  ship  was  connected  with  the  loading, 
and  not  the  navigation,  and  that  the  vessel  was  liable  for 
any  injury  caused  by  failing  to  attend  to  this. 

In  the  case  of  The  Niagara,6  a  vessel  which  went  to  sea 
with  a  defective  mechanical  horn  was  held  not  properly 
equipped  (or  seaworthy  in  the  technical  sense),  and  there- 

§  94.     i  170  U.  S.  272,  18  Sup.  Ct.  588,  42  L.  Ed.  1083. 

2  (D.  C.)  92  Fed.  667. 

s  (D.  C.)  91  Fed.  679. 

4  (D.  C.)  82  Fed.  665. 

b  (D.  C.)  S9  Fed.  526. 

e  28  C.  C.  A.  528,  81  Fed.  902. 


§    94)       IMPROPER  LOADING  AND  NEGLIGENT  NAVIGATION.  175 

fore  that  she  was  liable  to  the  cargo  for  any  damage  caused 
thereby. 

The  burden  to  prove  proper  seaworthiness  or  equipment 
is  on  the  carrier. 

Some  of  the  nicest  questions  in  connection  with  the  act 
have  arisen  in  reference  to  the  proper  management  of  her 
portholes.  The  question  as  to  responsibility  for  leaving  a 
porthole  open  or  insecurely  fastened  at  sailing  depends 
largely  upon  its  location,  and  upon  the  question  whether 
harm  could  reasonably  be  expected  to  come  from  leaving  it 
open. 

In  The  Silvia,7  a  porthole  was  knowingly  left  open  by  the 
crew  at  the  time  of  the  vessel's  sailing,  and  care  was  taken 
not  to  block  it  by  cargo,  so  that  in  case  of  necessity,  when 
the  vessel  went  to  sea,  it  could  have  been  easily  closed. 
The  porthole  itself  was  without  defect.  At  sea  the  crew 
forgot  to  close  it,  and  some  of  the  goods  were  injured.  The 
court  held  that  this  was  a  fault  of  navigation,  and  did  not 
render  the  vessel  unseaworthy. 

On  the  other  hand,  in  the  case  of  The  Manitoba,8  a  port- 
hole was  unintentionally  left  insecure  at  the  time  of  sailing. 
Judge  Brown  held  that  this  was  a  fault  connected  with  the 
ordinary  loading,  and  was  not  an  act  of  navigation,  and  that 
the  ship  was  liable.  It  is  commended  as  an  interesting  dis- 
cussion of  the  difference  between  the  two  cases. 

In  the  English  case  of  Dobell  v.  Steamship  Rossmore 
Co.,9  the  porthole  was  not  only  left  open,  but  cargo  was 
packed  against  it,  so  that  it  could  not  have  been  closed  at 
sea.  The  court  held  that  under  these  circumstances  it  was 
a  fault  in  loading,  and  not  in  navigation,  and  that  the  vessel 
was  liable. 

The  vessel  which  is  so  stowed  that  she  is  down  by  the 

T  171  U.  S.  402,  19  Sup.  Ct.  7,  43  L.  Ed.  241. 

•  (D.  C.)  104  Fed.  145. 

•  [18SJ5]  2  Q.  B.  408. 


176  THE    IIARTEK    ACT.  (Ch*.   8 

head,  causing  the  cargo  to  run  forward,  is  liable  for  the 
consequences.10 

On  the  other  hand,  where  water  ballast  in  being  pumped 
out  injured  the  cargo,  owing  to  the  fact  that  the  crew  in 
pumping  negligently  left  a  valve  open,  the  machinery  itself 
being  in  perfect  order,  this  was  held  a  fault  in  navigation, 
and  the  vessel  was  not  liable.11 

And  lack  of  attention  to  tlie  vessel's  pumps  while  on  a 
voyage,  by  which  cargo  was  injured,  the  pumps  themselves 
being  in  good  order,  is  a  fault  in  navigation,  for  which  the 
vessel  is  not  liable  under  the  act.12  Breaking  adrift  and 
causing  damage  to  cargo,  because  the  pilot  anchored  the 
vessel  in  a  bad  place,  was  a  fault  of  navigation,  for  which 
the  ship  was  not  liable.13 

So  a  vessel  which  was  injured  on  a  voyage,  and  taken  to 
an  intermediate  port  for  repairs,  was  not  liable  for  subse- 
quent damage  from  the  failure  to  make  the  repairs  suffi- 
ciently extensive,  owing  to  a  lack  of  judgment  of  the  mas- 
ter.1* 


NECESSITY  OF  STIPULATION  TO  REDUCE  LIA- 
BILITY FOE,  UNSEAWORTHINESS. 

95.  The  act  permits  the  shipowner  to  reduce  his 
■warranty  of  sea-worthiness  to  the  measure 
of  reasonable  diligence  by  proper  stipula- 
tions, but  does  not  have  this  effect  proprio 
vigore. 

io  Botany  Worsted  Mills  v.  Knott  (D.  C.)  76  Fed.  582;  Id.,  27  C.  C. 
A.  326,  82  Fed.  471;  Id.,  179  U.  S.  69.  21  Sup.  Ct.  30,  45  L.  Ed.  90. 

ii  The  Mexican  Prince  (D.  C.)  82  Fed.  484.;  Id.,  34  C.  a  A.  168,  91 
Fed.  1003. 

12  The  British  King  (D.  C.)  89  Fed.  872. 

is  The  Etona,  18  C.  C.  A.  380,  71  Fed.  895. 

14  The  Guadeloupe  (D.  C.)  92  Fed.  670. 


§    95)      SEDUCTION  OF  LIABILITY  FOR  UNSEAWORTHINESS.  177 

Probably  the  most  interesting  case  that  has  been  decided 
so  far  upon  the  act  is  that  of  THE  CARIB   PRINCE.1 
There,  a  defective  rivet  which  had  existed  from  the  very 
construction  of  the  ship,  and  was  not  discoverable  by  the 
utmost  care,  caused  by  leakage  a  damage  to  the  cargo.    Un- 
der the  decisions  relating  to  seaworthiness  independent  of 
the  act,  this  was  a  latent  defect,  and  the  owner  was  solelv 
responsible   under  his   implied  warranty  of  seaworthiness. 
The  vessel  owner  asserted  exemption,  first,  on  the  ground 
that  his  bill  of  lading  contained  a  clause  against  such  un- 
seaworthiness, by  which  he  was  released  from  liability;   and, 
second,  he  contended  that  the  language  of  the  Harter  act 
itself,  even  if  the  bill  of  lading  did  not  mean  what  he  said, 
exempted  him  from  every  defect  in  the  vessel  not  discover- 
able by  due  diligence.     The  supreme  court,  however,  held 
as  to  the  first  point,  that  his  bill  of  lading,  properly  con- 
strued, was  not  intended  to  cover  defects  in  the  vessel  exist- 
ing at  the  time  of  sailing,  but  only  those  subsequently  aris- 
ing.    In  reference  to  his  second  defense,  it  held  that  the 
act  did  not,  by  force  of  its  own  language,  reduce  the  liability 
for  unseaworthiness  to  the  measure  of  due  diligence,  when 
no  contract  was  made,  but  merely  gave  the  vessel  'owner 
the  right,  by  contract  properly  worded,  to  so  reduce  his  lia- 
bility.    Hence  it   held  the  vessel  liable  under  his  implied 
warranty  of  seaworthiness,  independent  of  the  statute,  as 
he  had  not  by  contract  protected  himself  against  it. 

§  95.     i  170  U.  S.  655,  18  Sup.  Ct.  753,  42  L.  Ed.  1181 
HUGHES.AD.— 12 


178  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       ^Ch.   9 

CHAPTER  IX. 

OF  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT. 

96-97.     The  Waters  Included,  and  Wharves,  Piers,  and  Bridges. 

98.  Torts,  to  be  Marine,  must  be  Consummate  on  Water. 

99.  Torts  may  be  Marine  though  Primal  Cause  on  Land. 

100.  Detached  Structures  in  Navigable  Waters. 

101.  Torts  Arising  from  Relation  of  Crew  to  Vessel  or  Owner. 

102.  Personal    Torts    Arising    from    Relation    of    Passengers    to 

Vessel. 
108.     Obligations  to  Persons  Rightfully  on  Vessel,  but  Bearing  no 
Relation  to  It. 

104.  Liability  as  between  Vessel  and  Independent  Contractor. 

105.  Doctrine  of  Imputed  Negligence. 

106.  Assaults,  etc. 

107.  Doctrine  of  Contributory  Negligence. 

THE  WATERS  INCLUDED,  AND  WHARVES,  PIERS, 
AND  BRIDGES. 

96.  The   test  of  jurisdiction  in  matters   of  tort  is 

the  locality. 

97.  This    includes   navigable  waters,   natural  and 

artificial,  in  their  average  state,  but  does  not 
include  •wharves,  piers,  or  bridges  attached 
to  the  shore. 

We  have  already  seen  that  the  test  of  jurisdiction  in  mat- 
ters of  tort  is  the  locality,  and  therefore  we  must  first  con- 
sider what  is  meant  by  this  test,  and  what  waters  it  includes ; 
and  we  must  then  take  up  the  various  torts  cognizable  in 
admiralty.  They  may  be  subdivided  into  torts  to  the  per- 
son and  torts  to  property ;  and  torts  to  the  person  may  be 
further  subdivided,  for  convenience  of  discussion,  into  torts 
not  resulting  in  death  and  those  resulting  in  death. 


§§    96-97)       WATERS    INCLUDED,   WHARVES,  PIERS,  ETC.  179 

The  admiralty  jurisdiction  in  matters  of  tort  exists  over 
all  navigable  waters,  as  explained  in  a  previous  connec- 
tion.1 This  includes  canals.2  But  it  includes  only  navig- 
able waters  in  their  usual  state.  For  instance,  a  stream  that 
is  navigable  at  ordinary  tides  is  none  the  less  within  the  ju- 
risdiction because  it  happens  to  be  bare  at  an  unusually  low 
tide:  and,  conversely,  when  a  navigable  river  is  widened  by 
freshets  far  beyond  its  usual  banks,  and  overspreads  the  ad- 
joining country  on  either  side,  it  does  not  carry  admiralty 
jurisdiction  with  it.  Hence,  in  the  case  of  The  Arkansas  3  a 
steamer  which,  during  a  flood,  was  far  out  of  the  regular 
channel,  and  collided  with  a  house,  which  was  usually  in- 
land, was  held  to  have  committed  no  marine  tort. 

The  line  is  frequently  narrow  between  the  navigable  wa- 
ters and  structures  bridged  over  them.  Anything  that  is 
attached  to  the  shore,  although  the  water  may  be  beneath 
it,  is  considered  as  a  mere  projection  of  the  shore,  and  torts 
happening  upon  such  structures  are  not  within  the  jurisdic- 
tion of  the  admiralty  court.  This  applies  more  especially  to 
wharves  and  bridges,  which  are  fixed  structures 

In  the  case  of  The  Professor  Morse/  a  marine  railway  at- 
tached to  the  shore  projected  out  into  navigable  water;  that 
portion  which  was  intended  to  raise  ships  being  under  water 
A  passing  schooner  injured  this  portion.  The  owner  of  the 
railway  libeled  the  schooner,  but  the  court  dismissed  the 
libel  for  want  of  jurisdiction. 

Fofthe  same  reason  injuries  to  a  wharf,  or  bridge,  or  pier 
by  a  vessel  running  into  it  cannot  be  recovered  in  admiralty 
as  they  are  considered  to  have  happened  on  land.0 

§?  OPj-97.     i  Ante,  pp.  8-12. 

I  m  Pnl\\B^er'  10°  U'  S-  629>  3  SUP"  <*  ^  «  L-  E*-  1056. 

•  (D.  C.)  17  Fed.  383. 

*  (D.  C.)  23  Fed.  803. 

■  The    Neil    Cochran,    Fed.    Cas.    No.     10,087;     THE    JOHN    C 
SWEENY  (D.  C.)  55  Fed.  540.  °' 


180  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       (Ch.  9 

In  the  case  of  The  Haxby,6  a  vessel  collided  with  a  pier, 
and  knocked  into  the  water  property  of  some  value,  which 
fell  on  account  of  the  injury  to  the  wharf.  It  was  held  that, 
even  though  this  property,  after  the  injury  to  the  wharf,  fell 
into  what  otherwise  would  constitute  navigable  water,  that 
did  not  bring  the  case  into  the  jurisdiction  of  the  admiralty 
courts.  Conversely,  if  a  ship  is  injured  by  the  negligence 
of  a  bridge  owner,  as  by  failure  to  open  a  draw  in  time,  the 
vessel  owner  may  sue  the  bridge  owner  in  personam  in  the 
admiralty,  since  the  vessel  is  a  floating  structure,  and  the 
injury,  though  it  commenced  on  the  land,  was  consummate 
on  navigable  waters.7 

For  the  same  reason  any  injuries  inflicted  upon  a  ship  by 
defects  in  the  wharf  or  dock  are  within  the  maritime  juris- 
diction, and  the  wharfinger  may  be  sued  in  personam  to 
recover  damages  occasioned  thereby.8 

This  right  of  the  vessel  owner,  however,  is  limited  to  a 
suit  in  personam  against  the  wharfinger  or  bridge  owner. 
Such  a  structure  is  not  a  maritime  instrument,  cannot  be 
the  subject  of  a  maritime  lien,  and  cannot  be  liable  in  rem.9 

TORTS,  TO  BE  MARINE,  MUST  BE  CONSUM- 
MATE   ON    WATER. 

98.  In  order  for  a  tort  to  be  within  the  jurisdic- 
tion of  the  admiralty,  it  must  be  consummate 
on  navigable  -water.  The  fact  that  it  com- 
mences upon  the  -water  does  not  give  juris- 
diction if  the  injury  itself  was  inflicted  on 
the  shore. 

e  (D.  C.)  94  Fed.  1016;    Id.  95  Fed.  170. 

t  The  Zeta  [1893]  App.  Cas.  468;  Ball  v.  Trenholm  (D.  O.)  45  Fed. 
588;  Greenwood  v.  Town  of  Westport  (D.  0.)  60  Fed.  560;  Panama  R. 
Co.  v.  Shipping  Co.,  166  U.  S.  280,  17  Sup.  Ct.  572,  41  L.  Ed.  1004. 

8  Smith  v.  Burnett,  173  U.  S.  430,  19  Sup.  Ct.  442,  43  L.  Ed.  756. 

e  IN  RE  ROCK  ISLAND  BRIDGE,  0  Wall.  213,  IS  L.  Ed.  753. 


§    98)  TORTS,  MUST    BE    CONSUMMATE    ON    WATER.  181 

This  may  be  illustrated  by  some  of  the  decided  cases. 
In  the  leading  case  of  THE  PLYMOUTH,1  a  ship  lying 
at  a  wharf  caught  on  fire,  and  the  fire  communicated  to 
buildings  on  the  shore.  The  owner  of  the  buildings  con- 
tended that  the  vessel  owner,  or  his  agent,  was  negligent  in 
the  origin  of  the  fire,  and  sued  the  owners  of  the  ship  in  ad- 
miralty for  the  damages  caused.  The  court,  however,  held 
that,  as  the  right  of  action  was  not  complete  until  the  build- 
ings were  injured,  and  as  the  buildings  were  a  part  of  the 
shore,  and  therefore  the  injury  was  inflicted  upon  the  shore, 
there  was  no  jurisdiction  in  the  case. 

This  principle  was  afterwards  applied  in  the  case  of  EX 
PARTE  PHENIX  INS.  CO.2 

In  the  case  of  Johnson  v.  Chicago  &  P.  Elevator  Co.." 
the  jib  boom  of  a  schooner,  which  was  being  docked  at  a 
wharf,  and  which  projected  over  the  wharf,  struck  a  ware- 
house on  the  wharf,  and  did  great  damage.  A  libel  to  re- 
cover these  damages  was  dismissed  for  want  of  jurisdiction. 
In  The  Mary  Stewart,4  a  ship  was  loading  cotton,  which 
was  being  carried  aboard  by  slings  while  the  ship  was  lying 
alongside  the  wharf.  One  of  the  bales  fell  while  being 
hoisted  aboard  and  before  it  crossed  the  ship's  rail,  and 
injured  a  workman  standing  on  the  wharf.  He  libeled  the 
shin  for  damages,  but  the  court  held  that  admiralty  had  no 
jurisdiction  of  the  cause  of  action. 

In  The  H.  S.  Pickands,5  a  workman  on  a  ladder  which 

rested  on  the  wharf,  and  extended  up  the  ship's  side,  was 

injured  by  its  slipping.     The  court  denied  its  jurisdiction. 

In  the  case  of  Bain  v.  Sandusky  Transp.  Co.,6  seamen  who 

had  left  their  ship  were  arrested  ashore  as  deserters.     They 

§  98.     i  3  Wall.  20,  18  L.  Ed.  125. 

*  118  U.  S.  G10,  7  Sup.  Ct.  25,  30  L.  Ed.  274. 

«  119  U.  S.  388,  7  Sup.  Ct.  254,  30  L.  Ed.  477. 

*  (D.  O.i  10  Fed.  137. 
s  (D.  I '.)  12  fed.  239. 
•(D.  C.)  60  Fed.  012. 


182  ADMIRALTY  JURISDICTION  IN   MATTERS  OF  TOUT.       (Ch.    9 

sued  in  admiralty  for  a  false  arrest,  but  the  court  held  that 
there  was  no  jurisdiction. 


TORTS  MAY   BE  MARINE,  THOUGH  PRIMAL 
CAUSE  ON  LAND. 

99.  The  converse   of  the  above  proposition  is  also 

true, — that,  where  the  injury  is  consummate 
on  the  ship,  admiralty  has  jurisdiction, 
though  its  primal  cause  was  on  the  land. 

In  the  case  of  Herman  v.  Port  Blakely  Mill  Co.,1  a  la- 
borer working  in  the  hold  of  a  vessel  was  injured  by  a  piece 
of  lumber  sent  down  through  a  chute  by  a  person  working 
on  the  pier.  It  was  held  that  admiralty  had  jurisdiction  of 
such  an  action. 

In  The  Strabo,2  a  workman  attempted  to  leave  a  ship  by 
a  rope  on  the  ship,  which  was  not  securely  fastened.  In 
consequence,  he  fell,  being  partly  injured  before  he  struck 
the  dock,  but  mainly  by  striking  the  dock.  Judge  Thomas, 
in  an  opinion  reviewing  and  classifying  the  authorities,  up- 
held the  jurisdiction  on  the  ground  that  the  ladder  was  on 
the  ship,  the  man  himself  was  on  the  ship  when  he  started 
in  his  fall,  that  there  was  some  injury  before  he  struck  the 
ground,  and  that  a  mere  aggravation  of  the  injury  after  he 
struck  the  ground  did  not  prevent  the  jurisdiction  from  at- 
taching.    On  appeal  his  decision  was  affirmed. 

DETACHED  STRUCTURES  IN  NAVIGABLE 
WATERS. 

100.  Detached  piers,  piles,    or    structures    attached 

to  the  bottom,   but    surrounded    by    water, 
are  within  the  jurisdiction. 

§  99.     i  (D.  C.)  69  Fed.  646. 

2  (D.  C.)  90  Fed.  110;   Id.,  39  C.  C.  A.  375,  98  Fed.  99S. 


§    101)  RELATION    OF    CREW    TO    VESSEL   OR    OWNER. 


183 


The  principle  that  wharves,  bridges,  and  piers  are  parts 
of  the  shore  applies  to  those  which  are  attached  directly  or 
intermediately  through  others  to  the  bank  or  shore  line. 
But  piles  and  structures  attached  to  the  bottom  and  sur- 
rounded by  water  are  within  navigable  waters,  and  ad- 
miralty has  jurisdiction  of  suits  for  injuries  inflicted  by  them. 
On  principle  it  ought  also  to  have  jurisdiction  of  suits  for 
injuries  received  by  them,  as  they  can  hardly  be  considered 
extensions  of  the  shore. 

In  the  case  of  Philadelphia  &  Havre  de  Grace  Steam  Tow- 
boat  Co.  v.  Philadelphia  &  W.  B.  R.  Co.,1  a  pile  driven  in 
a  channel  of  a  navigable  river  inflicted  injuries  upon  a  tug 
navigating  the  river.  It  was  held  that  this  cause  of  action 
was  cognizable  in  the  admiralty. 

In  ATLEE  v.  UNION  PACKET  CO.,8  a  pier  erected  in 
a  navigable  stream,  and  unlawfully  obstructing  navigation, 
inflicted  injuries  upon  a  barge  navigating  the  river.  The 
court  held  that  jurisdiction  attached  in  such  case. 

And  there  are  many  instances  in  the  books  of  suits  for 
damages  caused  by  sunken  anchors  or  wrecks  attached  to 
the  bottom.8  In  England  it  has  been  decided  that  suits  for 
damage  done  by  ships  to  oyster  grounds  under  navigable 
waters  are  within  the  jurisdiction,  but  the  decision  turns 
somewhat  on  the  language  of  their  statute.* 

TORTS  ARISING  FROM  RELATION  OF  CREW 
TO  VESSEL  OR  OWNER. 

101.  The  relation  between  the  crew  and  the  ship 
or  her  owners  is  substantially  the  same  as 
the  relation  between  master  and  servant  at 

6  100.     i  Fed.  Cas.  No.  11,085;   Id.,  23  How.  209,  16  L.  Ed.  433. 
a  21  Wall.  389,  22  L.  Ed.  619. 

•  The  Utopia  [1893]  App.  Cas.  492;    Ball  v.   Berwind  (D.  C.)  29 
Fed.  541;    The  Snark  [1900]  Trot).  Div.  105. 
«  The  Swift  [1901]  Frob.  Div.  168. 


184  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       (Ch.*9 

common  law,  in  so  far  as  it  bears  upon  the 
question  of  torts  to  the  person. 

The  common-law  doctrine  of  fellow  servants  applies  in 
such  case.  The  master  owes  to  the  seamen  the  nonassign- 
able duties  arising  from  that  law,  and  the  seamen  cannot 
recover  except  for  a  violation  of  this  nonassignable  duty, 
and  except  under  the  same  circumstances  as  would  make  the 
tort  actionable  at  common  law.  This  doctrine  as  to  ad- 
miralty is  well  summarized  in  the  case  of  OLSEN  v.  ORE- 
GON COAL  &  NAVIGATION  CO.,1  where  the  court  says : 

"The  question,  then,  is  whether  the  defendant,  as  owner,  is 
liable  for  this  act  of  negligence  on  the  part  of  the  master. 
It  will  be  readily  conceded  that  no  cause  of  action  is  stated 
against  the  defendant  unless  the  libel  shows  upon  its  face 
that  the  defendant  failed  to  perform  some  positive  duty 
which  it  owed  to  the  libelant  as  its  employe.  The  duties 
which  the  owner  of  a  ship  owes  to  the  seamen  employed  in 
its  service  are  to  see  that  the  ship  is  seaworthy,  properly 
manned,  and  equipped  with  all  necessary  appliances  for  the 
seamen's  safety,  and  for  the  use  of  the  ship;  to  provide 
them  with  sufficient  food,  and  with  medical  attendance  and 
care  in  case  of  sickness ;  to  use  due  care  in  the  selection  of 
the  master  and  other  officers  of  the  ship ;  and  he  may  also, 
under  the  general  principles  which  govern  the  relation  of 
master  and  servant,  owe  certain  special  duties  to  minors  and 
seamen  known  to  be  inexperienced. 

"Is  there  anything  in  the  libel  which  can  be  construed  as 
a  charge  that  the  defendant  failed  in  the  performance  of  any 
of  these  duties?  I  think  not.  The  negligence  complained 
of,  namely,  leaving  uncovered  the  hatchway  into  which  the 
libelant  fell,  was  that  of  the  master  or  other  officer  whose 
duty  it  was  to  see  that  it  was  properly  closed  with  the  cover 
provided  for  that  purpose  by  the  defendant.     Assuming  this 

§  101.     i  (D.  C.)  96  Fed.  109;   Id.,  44  C.  C.  A.  51,  104  Fed.  574. 


§    101)  RELATION    OF    CREW    TO    VESSEL    OR    OWNER.  185 

to  have  been  the  fault  of  the  master,  it  was  the  negligence 
of  a  fellow  servant  of  the  libelant,  for  which  the  defendant, 
as  owner  of  the  steamer,  is  not  liable  to  respond  in  dam- 
ages. While  it  is  true  that  the  master  of  a  ship  is  a  serv- 
ant of  higher  grade  than  that  of  a  seaman,  and  represents 
the  owner  in  respect  to  the  personal  duties  and  obligations 
which  the  latter  owes  to  the  seamen,  still  in  all  matters  per- 
taining to  the  navigation  of  the  ship  the  master  and  seamen 
are  fellow  servants,  engaged  in  one  common  employment, 
and  each  assumes  the  risk  of  the  other's  negligence  in  the 
discharge  of  the  duties  incident  to  such  employment. 
*  *  *  And,  conceding  that  it  was  negligence  on  the  part 
of  the  master  to  permit  the  hatchway  to  remain  uncovered, 
still  it  was  not  negligence  against  which  the  owner  of  the 
steamer  was  required  to  guard.  The  law  does  not  impose 
upon  the  owner  of  a  vessel  the  duty  of  keeping  its  hatch- 
ways closed,  when  at  sea,  for  the  protection  of  the  seamen 
on  board.  It  is  one  of  the  ordinary  duties  of  the  master,  or 
other  officer  having  charge  of  the  deck,  to  see  that  they  are 
closed  at  all  proper  times,  and  the  seaman  assumes  the  risk 
or  danger  which  may  attend  upon  the  negligent  omission 
of  the  master  or  other  officer  to  perform  his  duty  in  this  re- 
spect." 

In  The  City  of  Alexandria  2  the  court  says :  "It  was  neg- 
lect of  the  officers  or  men  aboard  in  the  performance  of  their 
ordinary  duties;  a  neglect  against  which  the  owners  could 
not  possibly  guard.  Those  who  engage  in  a  common  em- 
ployment take  upon  themselves  all  the  natural  and  ordinary 
risks  and  perils  incident  to  the  performance  of  their  duties. 
Among  these  are  the  perils  arising  from  the  carelessness 
and  negligence  of  others  who  are  engaged  in  the  same  em- 
ployment;  and  it  constitutes  no  exception  to  the  rule  that 
the  several  persons  employed  are  not  in  equal  station  or  au- 
thority, or  that  one  servant  is  injured  through  the  negligence 

»  (D.  C)  17  Fed.  300. 


186  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       (Ch.  9 

of  another  who  is  his  superior  in  station,  to  whom  he  owes 
obedience.  *  *  *  The  navigation  of  a  ship  from  one 
port  to  another  constitutes  one  common  undertaking  or  em- 
ployment, for  which  all  the  ship's  company  in  their  several 
stations  are  alike  employed.  Each  is  in  some  way  essential 
to  the  other,  in  furtherance  of  the  common  object,  viz.  the 
prosecution  of  the  voyage.  Each  one,  therefore,  upon  the 
principles  laid  down  in  the  common-law  courts,  takes  the 
risk  of  any  negligence  in  the  performance  of  his  duties  by 
any  of  his  associates  in  the  common  employment;  and  on 
common-law  principles,  therefore,  the  libelant's  claim  could 
not  be  sustained." 

Accordingly,  the  master  and  the  seamen,  the  mate  and  the 
seamen,  and  the  seamen  among  each  other  are  fellow  serv- 
ants, and  cannot  recover  for  each  other's  negligence,  though 
they  may  for  negligence  of  the  owner's  nonassignable  du- 
ties.3 

PERSONAL  TORTS  ARISING  FROM  RELATION  OF 
PASSENGERS  TO  VESSEL. 

102.  The  relation  between  the  passengers  and  the 
ship  or  her  owners  is  governed  by  the 
general  law  of  passenger  carriers,  except 
in  so  far  as  it  is  modified  by  statute. 

The  federal  statutes  contain  many  provisions  looking  to 
the  safety  of  passengers  and  their  accommodations.  Chap- 
ter 6,  tit.  48,  of  the  Revised  Statutes  (sections  4252-4289), 
and  chapter  2,  tit.  52,  of  the  Revised  Statutes  (sections  4463- 
4500),  contain  these  provisions  in  detail.     They  contain,  in 

s  Grimsley  v.  Hankins  (D.  C.)  46  Fed.  400;  The  Job  T.  Wilson  (D. 
C.)  84  Fed.  204;  The  Queen  (D.  C.)  40  Fed.  694;  The  Miami,  35  C. 
O.  A.  2S1,  93  Fed.  218;  Carlson  v.  Association  (D.  C.)  93  Fed.  468; 
Quebec  S.  S.  Co.  v.  Merchant,  133  U.  S.  375,  10  Sup.  Ct.  397,  33  L. 
Ed.  G56. 


§   103)       OBLIGATIONS  TO  STRANGERS  RIGHTFULLY  ABOARD.       187 

general,  regulations  to  insure  a  skillful  crew,  limitation  of 
the  number  of  passengers  carried,  many  provisions  against 
fire,  requirements  for  boats,  life-preservers,  and  other  ap- 
pliances necessary  in  wrecks,  and  they  prescribe  heavy  pen- 
alties for  a  violation  of  any  of  these  provisions.  But,  out- 
side of  these  statutes,  any  improper  treatment  of  a  passen- 
ger by  any  of  the  crew  inflicted  within  the  line  of  his  duty  is 
the  subject  of  an  action.  For  instance,  in  the  case  of  The 
Willamette  Valley,1  a  passenger  was  allowed  to  recover  dam- 
ages for  refusal  to  accept  a  first-class  ticket  and  for  giving 
him  second-class  accommodations. 

In  the  case  of  The  Yankee,2  a  vigilance  committee  escort- 
ed an  obnoxious  citizen  to  a  ship  in  the  harbor,  and  recom- 
mended him  to  take  a  sea  voyage,  and  the  ship  carried  him 
away.  He  sued  the  owners  of  the  ship  in  personam,  and  the 
court  sustained  the  jurisdiction. 

A  passenger  may  proceed  in  rem  for  any  injury  received 
aboard  a  ship,  except  assaults.* 

OBLIGATIONS  TO  PERSONS    RIGHTFULLY   ON   VES- 
SEL, BUT  BEARING  NO  RELATION  TO  IT. 

103.  Persons  rightfully  on  a  vessel  are  entitled  to 
demand  the  exercise  of  ordinary  care  to- 
wards them  on  the  part  of  the  vessel,  un- 
der the  doctrine  of  implied  invitation. 

In  the  case  of  LEATHERS  v.  BLESSING,1  a  patron  of 
a  steamer,  who  was  expecting  some  cargo  by  her,  went 
aboard  to  make  inquiries  about  it,  and  was  injured  by  a  bale 
of  cotton  falling  on  him.  He  libeled  in  personam,  and  the 
court  allowed  a  recovery. 

|  102.     i  (D.  C)  71  Fed.  712. 

*  Fed.  Cas.  No.  18,124,  1  McAll.  467. 

a  The  City  of  Panama,  101  U.  S.  462,  25  L.  Ed.  453. 

I  103.     i  105  U.  S.  826,  20  L.  Ed.  1192. 


188  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       (Ch\  9 

The  most  frequent  cases  of  this  sort  are  those  of  labor- 
ers employed  in  and  about  a  vessel  in  port.  For  instance, 
suppose  that  stevedores  are  employed  as  independent  con- 
tractors to  load  or  discharge  a  vessel,  whether  by  the  vessel 
herself  or  her  charterers.  In  such  case  the  vessel  is  not 
responsible  for  the  acts  of  the  stevedores'  men  causing  dam- 
age.2 

The  vessel  would  be  responsible  for  the  act  of  a  member 
of  its  crew  if  acting  at  the  time  in  its  service,  though  not  if 
acting  at  the  time  in  the  stevedore's  service.8 

If  the  vessel  is  properly  fitted  up  and  constructed  as  usual, 
she  is  not  responsible  to  any  one  who  falls  into  one  of  her 
ordinary  openings.  These  questions  have  frequently  arisen 
in  the  case  of  men  falling  into  open  hatchways. 

The  duties  and  obligation  of  the  vessel  in  reference  to 
open  hatchways  have  been  the  subject  of  much  litigation.  It 
has  frequently  been  held  that,  so  far  as  the  crew  of  a  ves- 
sel is  concerned,  and  as  regards  workmen  upon  the  vessel, 
like  stevedores  or  their  employes,  it  is  not  negligence  to 
leave  a  hatchway  open.  Such  men  are  supposed  to  be  fa- 
miliar with  the  construction  of  a  ship,  and  to  know  that 
hatchways  are  necessary  structures,  and  are  made  to  be  left 
open  for  the  purpose  of  loading.  If,  therefore,  the  construc- 
tion of  the  ship  and  its  hatchways  is  proper,  and  there  is  no 
such  defect  about  them  as  could  be  discoverable  by  the  ex- 
ercise of  ordinary  care,  the  fact  that  they  are  left  open  would 
not  give  a  right  of  action  against  the  ship,  unless  they  were 
left  open  at  a  point  where  the  laborers  upon  a  ship  would 
not  naturally  expect  to  find  them  open,  and  had  no  rail  or 
guard  rope  around  them,  or  light  to  indicate  their  existence. 
As  the  cases  well  say,  the  doctrine  of  holes  in  highways  or 
places  where  people  are  accustomed  to  resort  has  no  appli- 

a  THE  INDRANI,  41  C.  C.  A.  511,  101  Fed.  596. 
s  The  Joseph  John,  30  C.  G.  A.  190,  S6  Fed.  471;    The  Joseph  B. 
Thomas,  30  C.  C.  A.  333,  86  Fed.  658,  46  L.  R.  A.  58. 


§    104)       LIABILITY  AS  BETWEEN  VESSEL  AND  CONTRACTOR.        189 

cation  to  such  places,  for  the  deck  of  a  ship  is  not  a  high- 
way, and  men  experienced  in  loading  ships  are  assumed  to 
take  the  risk  of  such  ordinary  openings  as  would  be  ex- 
pected to  exist  upon  a  ship.  If  the  hatchway  was  in  every 
respect  proper  as  far  as  the  construction  goes,  and  there  was 
no  negligence  in  uncovering  it,  and  not  properly  guarding 
it,  and  this  was  done  by  the  stevedore  as  an  independent  con- 
tractor, the  ship  would  not  be  liable  for  his  act.4 

A  hatchway  left  open  by  some  one  connected  with  the 
ship  may,  however,  cause  injuries  to  a  passenger  which 
would  entitle  him  to  sue  where  the  crew  or  stevedores 
could  not,  because  a  passenger  is  not  supposed  to  be  as 
familiar  with  the  construction  of  a  ship  as  such  men,  and  the 
measure  of  duty  of  a  carrier  towards  a  passenger  is  a  much 
higher  one.  If  there  is  an  unguarded  opening  in  parts  of 
the  ship  where  passengers  are  permitted  to  go,  and  an  in- 
jury is  received  in  consequence,  the  passenger  could  pro- 
ceed against  the  ship.6 

LIABILITY  AS  BETWEEN  VESSEL  AND  INDE- 
PENDENT CONTRACTOR. 

104.  The  vessel  is  not  liable  for  injuries  caused  by 
independent  contractors  ;  probably  not  even 
when  its  tackle  is  being  used  by  the  con- 
tractor, and  breaks  in  the  use. 

Frequently,  when  charterers  are  loading  a  ship,  the  char- 
ter party  provides  that  the  steamer  is  to  furnish  use  of  tackle 
and  engines.     In  such  case,  if  the  stevedore  is  an  employe, 

*  The  Jersey  City  (D.  C.)  46  Fed.  134;  Home  v.  George  H.  Ham- 
mond Co..  18  C.  C.  A.  54,  71  Fed.  314;  Glaus  v.  Steamship  Co.,  32  C. 
C.  A.  282,  89  Fed.  646;  Dwyer  v.  Steamship  Co.  (C.  C.)  4  Fed.  493;  The 
Saratoga  (D.  C.)  87  Fed.  349;  Id.,  36  C.  C.  A.  208,  94  Fed.  221;  The 
Auchanardeh  (D.  0.)  100  Fed.  895;  Roymann  v.  Brown,  44  C.  C.  A. 
464,  106  F<  d.  250;   THE  INDRANI,  -11  C.  C.  A.  511,  101  Fed.  596. 

«  The  Furnessia  (D.  C.)  35  Fed.  798. 


190  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       (Cll.  9 

and  not  an  independent  contractor,  the  ship  is  responsible 
for  injuries  caused  by  lack  of  reasonable  care  in  selecting 
suitable  appliances,  just  as  any  master  is  liable  to  his  serv- 
ant under  such  circumstances.1 

But  suppose  that  the  ship  makes  such  a  contract  with  the 
charterer  to  allow  the  use  of  its  tackle,  and  the  stevedore  is 
an  independent  contractor,  selecting  his  own  men.  Sup- 
pose that  in  such  case,  while  .the  stevedore  is  working  with 
the  ship's  tackle,  one  of  his  men  is  injured  by  a  defect  in 
that  tackle,  due  to  the  lack  of  reasonable  care  in  selection 
or  inspection.  In  such  case  it  would  seem,  on  principle,  that 
the  ship  ought  not  to  be  liable.  Certainly,  the  doctrine  of 
implied  invitation  has  nothing  to  do  with  such  a  case.  On 
the  other  hand,  her  contract  to  furnish  her  tackle  is  with 
the  charterer,  not  with  the  laborer,  and  raises  no  privity 
between  him  and  the  ship.  Nothing  can  well  be  said  to  be 
absolutely  defective.  A  ship  which  is  unseaworthy  on  the 
ocean  may  be  perfectly  safe  on  a  river.  An  old  rope  or 
chain  may  be  perfectly  safe  to  raise  a  keg,  and  break  in 
raising  a  hogshead.  Its  unsafeness  is  largely  in  its  use,  and 
hence,  as  the  stevedore  decides  how  to  use  it,  and  how  much 
strain  to  put  on  it,  it  seems  unjust  to  go  against  the  ship 
in  the  event  of  its  breaking.  And,  back  of  all  that,  a  cause 
of  action  arises  out  of  a  breach  of  duty.  A  ship  owes  no 
duty  to  the  employes  of  an  independent  contractor,  except 
the  general  duties  owed  to  every  one.2 

Accordingly,  it  was  held  in  The  Mary  Stewart 8  that  the 
ship  was  not  liable  to  a  laborer  who,  while  engaged  in  load- 
ing the  ship,  was  injured  by  a  bale  of  cotton  falling  on  him, 
due  to  the  breaking  of  a  rope  furnished  by  the  ship. 

In  The  Dago  4  the  same  decision  was  rendered  on  a  sim- 

§  104.     i  The  Elton,  31  C.  C.  A.  496,  88  Fed.  519. 
2  Bibb's  Adm'r  v.  Railroad  Co.,  87  Va.  711,  14  S.  E.  163;  Murray  v. 
Currie,  L.  R.  6  C.  P.  24. 
s  (D.  C.)  10  Fed.  137. 
*  (C.  C.)  31  Fed.  574. 


§    104)       LIABILITY   AS  BETWEEN  VESSEL  AND  CONTRACTOR.       191 

ilar  state  of  facts,  though  the  court  placed  its  decision  main- 
ly on  the  fact  that  there  was  nothing  to  indicate  any  defect 
in  the  rope. 

The  most  interesting  decisions  on  this  question  have  been 
in  the  English  courts.  In  the  case  of  Heaven  v.  Pender,5 
a  dock  company  erected  a  staging  around  a  ship  under  a 
contract  with  the  shipowner.  A  man  employed  by  the  ship- 
owner to  paint  the  ship  fell  in  consequence  of  the  giving 
way  of  this  staging.  He  sued  the  dock  company.  Jus- 
tices Field  and  Cave,  of  the  queen's  bench,  held  that  there 
was  no  privity  between  him  and  the  dock  company,  and  that 
he  could  not  recover.  The  case  was  taken  to  the  court  of 
appeals,  where  this  decision  was  reversed,  and  he  was  al- 
lowed to  recover. 

But  in  the  recent  case  of  CALEDONIAN  RY.  CO.  v. 
MULHOLLAND  6  this  case  was  much  limited,  and  placed 
on  the  ground  that  the  party  was  impliedly  invited  to  come 
on  its  premises  by  the  dry-dock  company,  and  to  use  this 
staging,  and  that  it  was  in  its  condition  a  trap,  thus  bring- 
ing the  case  under  another  well-known  principle  of  the  law 
of  torts. 

The  case  of  CALEDONIAN  RY.  CO.  v.  MULHOL- 
LAND  is  interesting  as  bearing  out  this  distinction.  There 
a  railway  company  contracted  with  a  gas  company  to  de- 
liver coal  at  a  certain  point.  Two  coal  cars  were  delivered 
at  that  point  to  another  company,  which  received  them  for 
the  gas  company.  While  in  charge  of  the  second  company, 
one  of  its  servants  was  killed,  owing  to  the  fact  that  the 
brakes  were  out  of  order,  and  could  not  stop  the  cars.  His 
administrator  sued  the  first  company  on  account  of  this  de- 
fect in  their  cars,  but  the  house  of  lords  held  that  the  first 
company  owed  him  no  duty,  and  that  he  could  not  recover. 

»  9  Q.  B.  Div.  302. 

•  [1898]  App.  Cas.  216. 


192  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT.       (Ch.   9 


DOCTRINE  OF  IMPUTED  NEGLIGENCE. 

105.  Negligence  on  the  part  of  a  vessel  is  not  now 
imputable  to  a  person  injured  while  on 
board  the  vessel,  but  who  is  not  connected 
with  its  management  or  navigation. 

The  doctrine  of  imputed  negligence,  by  which  a  person  on 
one  ship  or  vehicle,  though  not  identified  with  its  manage- 
ment or  navigation,  is  chargeable  with  the  negligence  of  his 
own  vehicle,  and  cannot,  in  case  of  such  negligence,  proceed 
against  the  other  vessel  if  also  negligent,  has  been  repudi- 
ated by  the  modern  authorities.  As  the  law  now  stands,  a 
person  injured  on  a  vessel  in  collision  can  proceed  against 
either  or  both  as  either  or  both  are  negligent.1 

ASSAULTS,  ETC. 

106.  Admiralty  has  jurisdiction  of  assaults  or  ab- 
duction upon  waters  within  its  cognizance. 

Under  admiralty  rule  16  there  is  no  remedy  in  rem  against 
the  ship  for  such  assaults,  but  there  would  be  against  the 
owner  if  the  assault  was  made  by  any  of  the  crew  within  the 
course  of  his  employment,  and  there  certainly  would  be 
against  the  man  who  makes  the  assault.1 

§  105.  i  New  York,  P.  &  N.  R.  R.  Co.  v.  Cooper,  85  Va.  939,  9  S. 
E.  321;  Atlantic  &  D.  Ry.  Co.  v.  Ironmonger,  95  Va.  625,  27  S.  E.  319; 
LITTLE  v.  HACKETT,  116  U.  S.  366,  6  Sup.  Ct.  391;  The  Bernina, 
13  App.  Cas.  1. 

§  106.  i  Chamberlain  v.  Chandler,  3  Mason,  242,  Fed.  Cas.  No. 
2,575;  Plummer  v.  Webb,  1  Ware,  69,  Fed.  Cas.  No.  11,234;  Steele  v. 
Thacher,  1  Ware.  85,  Fed.  Cas.  No.  13,o4S;  Turbett  v.  Dunlevy,  Fed. 
Cas.  No.  14,241;  The  Miami,  35  C.  C.  A.  281,  78  Fed.  818.  Whether  the 
master,  in  assaulting  a  person  aboard  ship,  is  acting  in  the  course  of 
his  employment, — or,   in  other  words,   whether  the   vessel   or   her 


§    107)  DOCTRINE    OF    CONTRIBUTORY    NEGLIGENCE.  193 

It  seems,  however,  that,  though  a  physical  wrong  done  by 
the  master  of  the  ship  is  an  assault,  in  the  sense  of  admiralty 
rule  16,  for  which  the  injured  party  can  only  proceed  in 
rem,  this  principle  does  not  apply  to  his  dog.  Accordingly, 
where  a  pilot  who  was  rightfully  on  board  was  bitten  by  a 
dog  in  the  cabin  where  he  had  been  assigned,  the  court  al- 
lowed him  to  proceed  in  rem  against  the  vessel.2 

DOCTRINE   OF  CONTRIBUTORY  NEGLIGENCE. 

107.  In  awarding  damages  for  personal  injuries  in 
admiralty,  the  common-law  doctrine  that 
contributory  negligence  bars  recovery  does 
not  apply. 

It  will  be  seen,  in  connection  with  the  law  of  collision,  that, 
where  both  vessels  are  in  fault,  the  damages  are  equally 
divided,  regardless  of  the  degree  of  fault  of  each  vessel.  In 
assessing  damages  for  injuries  to  the  person,  the  courts  do 
not  feel  bound,  as  in  collision  cases,  to  divide  them  equally, 
but,  even  where  the  party  hurt  is  more  negligent  than  the 
vessel,  they  may  award  him  damages.  The  whole  matter  is 
largely  in  the  discretion  of  the  court.1 

owner  is  responsible  for  a  willful  or  intentional  assault-depends  on 
the  ordinary  principles  of  the  law  of  torts.  As  is  well  known,  it 
was  for  a  long  time  the  doctrine  of  the  courts  that  such  an  act  was 
not  within  the  course  of  the  servant's  employment  and  that  the 
master  was  not  liable  therefor,  except  in  cases  of  carriers  and  inn- 
keepers. Recent  decisions  have  very  much  modified  this  doctrine,  but 
it  is  hardly  within  the  purview  of  this  treatise  to  discuss  it  elab- 
oral  ely.  In  the  last-cited  case  the  court  held  that  such  an  assault  of 
the  master  upon  a  stowaway  aboard  a  ship  was  not  within  his  em- 
ployment,  and  did  not  render  the  vessel  or  owner  liable.  See,  on  the 
general  subject,  the  recent  English  case  of  Hanson  v.  Waller  [19011  1 
q:  B.  390. 

-  The  Ix)rd  Derby  (C.  C.)  17  Fed.  265. 

§  107.     i  The  Daylesford  (D.  C.)  30  Fed.  633;  THE  MAX  MORRIS, 
137  U.  S.  1,  11  Sup.  Ct.  29,  34  L.  Ed.  586. 
HUGHES.AD.— 13 


194  ACTION    FOR   INJURIES    RESULTING    FATALLY.       (Ch.   10 


CHAPTER  X. 

OP  THE  RIGHT  OF  ACTION  IN  ADMIRALTY  FOR  INJURIES 
RESULTING  FATALLY. 

108.  Survival  of  Action  for  Injuries  Resulting  in  Death— The  Gen- 

eral Common  Law  Doctrine. 

109.  The  Civil-Law  Doctrine. 

110.  The  Continental  Doctrine. 

111.  The  English  Doctrine  as  to  Survival  in  Admiralty. 

112.  The  American   Doctrine  as  to   Survival  In  Admiralty— Inde- 

pendent of  Statute. 

113.  Under  State  Statutes. 

114.  Under  Congressional  Statutes. 

115.  The  Law  Governing. 

116.  Effect  of  Contributory  Negligence. 

117.  Construction  of  Particular  Statutes. 


SURVIVAL   OF    ACTION   FOR   INJURIES    RESULTING 
IN  DEATH— COMMON-LAW  DOCTRINE. 

108.  By  the  common  law  there  was  no  right  of  ac- 

tion for  injuries  resulting  in  death. 

109.  CIVIL-L.AW  DOCTRINE— Neither  was  there 

any  such  right  by  the  civil  law  in  case  of 
the  death  of  a  freeman. 

110.  CONTINENTAL.  DOCTRINE— The  Continental 

nations,  however,  recognize  such  a  right, 
both  on  land  and  water,  and  have  recognized 
it  for  probably  two  centuries. 

The  Common-Law  Doctrine. 

At  common  law  there  was  no  survival  of  any  right  of 
action  for  injuries  inflicted  by  another  causing  death;  the 
reasons  assigned  being  that  such  an  action  was  purely  per- 


§§    108-110)       SURVIVAL    OF    ACTION    FOR    INJURIES.  195 

sonal  to  the  party  injured,  and  that  the  civil  injury  was 
merged  in  the  greater  injury  to  the  state.1 

As  to  the  action  being  personal  to  the  party  injured,  it 
is  easily  seen  why  such  actions  should  not  survive.  In  such 
cases  the  party  may  not  elect  to  proceed,  and  so  the  avoid- 
ance of  litigation  is  accomplished.  But,  even  as  to  the  in- 
jured party,  this  power  of  election  does  not  exist  when 
death  ensues.  And  the  whole  reason  ignores  the  fact  that 
the  party  killed  is  not  the  only  one  injured.  There  are 
many  cases  where  suit  is  brought,  not  for  a  right  of  action 
derived  from  the  party  injured,  but  for  damages  caused 
directly  to  the  suitor.  As  a  result,  the  common  law  finds 
itself  in  the  absurd  position  of  giving  a  right  of  action  to 
the  parent  for  the  loss  of  the  services  of  his  son  if  some 
one  beats  him  so  severely  as  to  disable  him,  but  not  if  the 
beating  is  carried  so  far  as  to  kill  him.  A  parent  may  sue 
at  common  law  for  loss  of  the  services  of  his  daughter  if 
some  libertine  seduces  her,  but  not  if  some  brute  outrages 
and  murders  her.  It  seems  to  be  one  case  where  the  part 
is  greater  than  the  whole. 

When  aged  and  indigent  parents  are  deprived  by  death 
of  the  son  who  is  supporting  them,  or  a  wife  with  a  family 
of  helpless  children  is  left  to  feed  and  rear  them  unaided 
by  the  strong  arm  which  has  theretofore  done  all  the  labor, 
it  is  a  mockery  to  say  that  only  the  dead  was  the  party  af- 
fected. The  empty  larder  teaches  the  contrary,  and  the 
case  is  not  analogous  to  those  wrongs  like  slander  or  libel, 
which  are,  in  nature,  strictly  personal. 

On  natural  principles  of  equity,  such  wrongs  should  have 
a  remedy,  and  the  common-law  doctrine  cannot  be  justified. 
The  Cwil-Zmo  Doctrine. 

The  doctrine  of  the  civil  law  on  the  subject  is  not  entirely 
clear.     In  the  case  of  Hubgh  v.  New  Orleans  &  C.  R.  Co.,2 

fi§  108-110.     i  Baker  v.  Bolton,  1  Camp.  493. 
2  •;  La.  Ann.  -VM,  54  Am.  Dec.  565. 


196  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Ch.    it) 

the  supreme  court  of  Louisiana  decided  that  by  the  civil 
law  there  was  no  right  of  action  for  damages  resulting  in 
the  death  of  a  freeman,  as  the  value  of  a  freeman's  body 
could  not  be  estimated  in  damages;  but  that  there  was 
such  a  right  of  action  in  case  of  a  slave.  In  the  course  of 
the  opinion  it  is  also  said  that  the  well-known  passage  of 
Grotius  3  was  intended  to  enunciate  merely  a  duty  of  im- 
perfect obligation  arising  from  natural  law,  and  not  any  re- 
quirement of  municipal  law.  On  the  other  hand,  Judge 
Deady,  in  the  case  of  Holmes  v.  O.  &  C.  Ry.  Co.,4  states 
that  the  Roman  law  did  give  such  a  remedy,  though  he 
cites  no  authority  for  the  statement.  It  is  probable,  how- 
ever, and  certainly  the  opinion  of  the  leading  commentators, 
that  the  provisions  in  the  ancient  civil  law  in  relation  to  the 
killing  of  freemen  were  penal,  rather  than  civil. 

The  Continental  Doctrine. 

However  this  may  be,  the  leading  Continental  nations, 
which  have  drawn  from  the  civil  law  their  principles  of  right 
and  remedy,  have  adopted  in  their  system  of  laws  a  remedy 
for  such  cases. 

The  above-cited  decision  from  Louisiana  states  that  the 
law  of  France  allows  such  a  remedy,  though  it  did  not  feel 
bound  to  adopt  the  French  law  on  the  subject  for  Louisiana. 

In  Holland  (long  the  maritime  rival  of  England)  the  right 
of  action  is  firmly  established,  and  has  been  for  centuries. 
It  is  an  equitable  development  of  the  penal  provisions  of  the 
civil  law  relating  to  the  death  of  freemen. 

Grotius,  in  his  Introduction  to  the  Jurisprudence  of  Hol- 
land,5 says : 

"Sec.  2.  But  the  slayer  is  properly  bound  to  make  com- 

»  "Homicida  injustus  tenetur  solvere  impensas,  si  quae  faetae  sunt 
In  medicos,  et  iis  quos  occisus  alere  ex  officio  solebat,  puta  parentibus, 
uxoribus,  liberis  dare  tantum  quantum  ilia  spes  alimentorum, 
ratione  liabita  setatis  occisi,  valebat."    2  Grot  de  J.  B.  c.  17. 

*  (D.  C.)  5  Fed.  75. 

6  Book  3,  c.  33  (Herbert  Ed.  London  1845). 


§§    103-110)       SURVIVAL    OF    ACTION    FOR    INJURIES.  197 

pensation  to  the  widow,  children,  and  others,  if  any  there 
be,  who  were  usually  supported  by  the  labor  of  the  deceased, 
for  losses  and  loss  of  profits  calculated  upon  the  principal 
of  annuity." 

"Sec.  5.  And  it  is  to  be  observed  that  in  the  punishment, 
as  well  as  the  reconciliation,  a  great  distinction  is  made  be- 
tween cases  where  homicide  has  been  effected  by  assassi- 
nation,— that  is,  secretly  and  treacherously,  or  where  the 
criminal  was  aware  of  what  he  was  doing, — and  cases  where 
the  party  was  slain  unawares ;  or  where  the  homicide  took 
place  in  a  personal  conflict  with  unlawful  or  forbidden,  or 
with  equal  or  unequal,  weapons,  and  which  has  given  oc- 
casion to  the  combat ;  or  where,  in  short,  the  homicide  did 
not  occur  from  passion,  but  from  neglect.  But,  as  far  as 
regards  compensation,  these  circumstances  are  not  taken 
into  consideration,  as  it  is  sufficient  for  that  purpose  that  it 
has  been  occasioned  by  the  fault  of  some  one,  in  which  is 
included  the  neglect  or  unskillfulness  of  a  physician  or  mid- 
wife, and  the  neglect  or  ignorance  of  a  waggoner  or  skipper, 
or  the  incapacity  of  either  in  managing  a  ship  or  horses." 

Vinnius,  in  his  Commentaries  on  the  Institutes  (3d  Ed., 
Amsterdam,  1659),  in  discussing  the  title  of  the  Aquilian  law, 
says  that  there  was  no  right  of  action  under  that  law  for 
the  death  of  a  freeman ;  but  that  there  was  under  the  Cor- 
nelian law  if  the  killing  was  intentional  (dolo),  but,  if  neg- 
ligent (culpa),  a  fine  was  imposed;  but  that,  if  there  is  a 
question  of  civil  remedy,  the  unjust  slayer  is  required  to  pay 
the  funeral  and  medical  expenses,  and  such  a  sum  to  those 
whom  the  deceased  was  bound  to  support, — as,  for  instance, 
children,  wife,  and  parents, — as  their  expectation  of  sup- 
port was  worth,  considering  his  age. 

J.  Voet,  in  his  Commentary  on  the  Pandects,  after  refer- 
ring to  various  texts  of  the  Roman  law  on  the  subject  of 
rights  of  action  for  personal  injuries,  states  that  in  modern 
3  this  right  has  been  extended  to  the  case  of  injuries 
ting  in  death,  and  gives  a  right  of  action  to  the  chil- 


198  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Ch.   10 

dren  or  other  relations,  in  which  each  should  sue  for  the 
loss  personally  caused  to  him,  not  for  any  loss  inherited 
from  the  deceased.6 

In  Germany,  also,  the  right  exists.  In  a  decision  of  the 
German  Reichsgericht,  rendered  in  1882,7  it  was  held  that 
this  right  of  action  existed  in  favor  of  parents  for  the  neg- 
ligent killing  of  a  son.  The  opinion  cites  many  commenta- 
tors, and  traces  the  doctrine  back  for  two  centuries. 

The  law  of  Scotland  also  allows  actions  to  the  wife  or 
family  of  the  deceased  as  a  development  of  the  unwritten 
law  of  that  country.8 

As  these  countries  administer  the  law  substantially  the 
same  in  all  their  courts,  and  do  not  have  common-law  courts 
with  one  system  and  other  courts  with  another  system,  the 
doctrine  with  them  applies  on  land  and  sea  alike. 

This  prevalence  of  the  doctrine  among  the  leading  Con- 
tinental nations  would  seem  to  settle  that  it  is  at  least  suf- 
ficiently recognized  to  entitle  it,  in  so  far  as  it  may  be  mari- 
time in  nature,  to  be  considered  a  part  of  the  general  body 
of  maritime  law  as  administered  by  maritime  nations.  In 
other  words,  any  other  nation  that  may  choose  to  adopt  it 
into  its  jurisprudence   is   not  making   something   maritime 

«  "Nee  dubiurn,  qnin  ex  usu  bodiemo,  latius  ilia  agendi  potestas  ex- 
tensa  sit;  in  quantum  ob  hominem  liberum  culpa  occisum  uxori  et 
liberis  actio  datur  in  id,  quod  religion!  judicantis  sequuro  videbitur, 
habita  ratione  rictus,  quern  occisus  uxori  liberisque  suis  aut  aJiis  pro- 
pinquis  ex  operis  potuisset  ac  solitus  esset  subniinistrare.  *  *  * 
Qua  in  re  si  concurrat  forte  uxor,  parentes,  liberi,  alter  alteri  prsefer- 
endus  non  est;  sed  rnagis  unicuique  in  id,  quanti  sua  interesse  docet. 
actio  danda;  turn  quia  singuli  nou  de  poena,  sed  damno  sibi  illato  rep- 
arando  contendunt;  turn  quia  hsec  actio  uxori,  liberis,  similibusque, 
non  qua  occisi  heredibus  adeoque  jure  hereditario,  sed  qua  lsesis  ex 
facto  occidentis  datur;  sic  ut  et  illis  accominodanda  veniat,  qui  de- 
functo  beredes  esse  ab  intestato  non  potuerunt,  vel  occisi  heredita- 
tem,  utpote  suspectam  noluerent  adire."    Volume  1   (Ed.  1723)  p.  542. 

7  Entscbeidungen  des  R.  G.  in  Civilsacben,  vol.  7,  p.  139. 

«  Bell,  Comru.  §  2029;   Clarke  v.  Coal  Co.  [1891]  App.  Cas.  412. 


§    111)  THE    ENGLISH    DOCTRINE    AS    TO   SURVIVAL.  199 

that  was  not  maritime  before,  is  not  extending  the  limits 
of  the  general  maritime  law,  but  is  merely  drawing  from 
that  fountain  something  that  was  there  already. 


THE  ENGLISH  DOCTRINE    AS  TO  SURVIVAL  IN  AD- 
MIRALTY. 

111.  In  England  there   is  no  right  of  action  in  ad- 
miralty for  injuries  resulting  in  death. 

The  English  courts  recognized  no  such  right  in  the  ad- 
miralty equally  as  at  law.  Lord  Campbell's  act l  did  away 
with  this  doctrine  of  the  common  law,  and  gave  a  right  of 
action  to  the  personal  representative  for  the  benefit  of  the 
wife,  husband,  parent,  or  child  for  the  injury  done  to  them, 
not  for  any  injury  to  the  deceased  inherited  by  them.  The 
act  expressly  excepted  Scotland,  for  the  reason,  above  ex- 
plained, that  the  right  already  existed  there. 

It  was  long  a  question  in  England  whether  this  statute 
was  intended  to  apply  to  the  admiralty  courts.  After  much 
fluctuation,  it  was  finally  settled  by  the  house  of  lords  in 
the  case  of  THE  VERA  CRUZ,2  decided  in  1884,  that  the 
language  of  the  English  act  contemplated  only  suits  in  the 
common-law  courts,  as  was  evident  from  the  provisions  in 
relation  to  juries,  and  that  neither  that  act,  nor  the  other 
acts  giving  the  admiralty  courts  jurisdiction  in  case  of 
"claims  for  damage  done  by  a  ship,"  gave  the  latter  courts 
cognizance  in  rem  over  death  claims.  This  is  still  the  law 
of  England. 

§  111.     1  9  &  10  Vict.  c.  93.  2  10  App.  Cas.  59 


200  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Ch.  10 


THE  AMERICAN  DOCTRINE  AS  TO  SURVIVAL  IN  AD- 
MIRALTY—INDEPENDENT OF  STATUTE. 

112.  In  America  there  is,  independent  of  statute,  no 
right  of  action  in  the  admiralty  for  death  in- 
juries. 

In  the  United  States  the  decisions  have  been  far  from 
harmonious.  In  our  dual  system  of  laws,  we  must  con- 
sider the  question  independent  of  state  statute,  and  also  as 
affected  by  such  statutes. 

Some  of  the  district  judges,  when  the  question  came  be- 
fore them,  decided  that  the  common-law  doctrine  did  not 
govern  the  admiralty  courts ;  that  it  was  not  consonant 
with  natural  justice ;  and  that  the  widow  and  children  had 
a  natural  right  to  damages.  Hence  they  sustained  suits  by 
the  widow  and  children,  not  by  the  administrator,  even  in 
states  that  had  enacted  Lord  Campbell's  act.1 

The  question  first  came  before  the  supreme  court  in  Ex 
parte  Gordon,2  decided  in  1881.  A  libel  had  been  filed  in 
a  district  court  against  a  vessel  for  a  death  caused  by  a 
marine  collision.  A  writ  of  prohibition  was  asked  to  re- 
strain the  court  from  entertaining  the  case  as  one  beyond 
its  cognizance.  The  supreme  court  decided  that,  as  col- 
lision was  a  marine  tort,  the  district  court  had  jurisdiction 
over  the  subject-matter;  that  whether  to  consider  this  spe- 
cial claim  was  a  question  of  the  exercise,  not  of  the  exist- 
ence, of  jurisdiction;  that  the  lower  court  could  pass  upon 
such  a  question ;  and  that  the  proper  way  to  raise  it  was 
by  appeal.     This,  therefore,  settled  nothing. 

One  branch  of  the  question  was  presented  squarely  to 
the  court  in  the  case  of  THE  HARRISBURG,8  decided  in 

§  112.     1  The  Sea  Gull,  Chase.  145,  Fed.  Cas.  No.  12,578;  The  High- 
land Light,  Chase,  150,  Fed.  Cas.  No.  6,477. 
2  104  U.  S.  515,  26  L.  Ed.  814. 
»  119  U.  S.  199,  7  Sup.  Ot  140,  30  L.  Ed.  35S. 


§    112)  AMERICAN    DOCTRINE    AS    TO    SURVIVAL.  201 

1886.  That  was  a  collision  between  the  schooner  Tilton 
and  the  steamer  Harrisburg,  a  Pennsylvania  steamer,  in 
Massachusetts  waters,  in  which  the  mate  of  the  Tilton,  a 
citizen  of  Delaware,  was  killed.  His  widow  and  child  libeled 
the  steamer  in  the  United  States  district  court  at  Philadel- 
phia. Both  Massachusetts  and  Pennsylvania  had  statutes 
giving  suits  to  the  administrator,  but  these  were  held  in- 
applicable, as  the  libel  had  not  been  brought  within  the 
time  required  by  those  statutes. 

Chief  Justice  Waite  reviewed  the  American  decisions,  and 
held  that  the  rule  of  the  common  law  against  the  right 
was  well  established,  and  that  there  was  nothing  to  show 
that  the  rule  of  the  admiralty  law  was  different;  and  he 
held  that,  independent  of  statute,  the  right  of  action  did 
not  exist,  reserving  the  question  whether  a  statute  could 
give  it. 

This  and  the  subsequent  case  of  The  Alaska  *  settle 
that  the  right  of  action  does  not  exist  independent  of  statute. 

Then  came  the  case  of  THE  CORSAIR,5  decided  in  1892. 
It  was  a  libel  in  rem  against  a  Louisiana  steamer  by  the 
parents  of  a  passenger  killed  by  the  negligence  of  the  steamer 
in  Louisiana  waters.  The  claim  was  based  upon  the  sec- 
tions of  the  Louisiana  Code  providing  for  the  bringing  of 
actions  for  injuries  resulting  in  death.  The  court  held  that 
the  statute  was  evidently  not  intended  to  give  a  remedy  in 
rem,  and  that,  therefore,  the  court  had  no  jurisdiction  of 
the  case.  The  opinion,  however,  seems  to  consider  that 
an  action  in  personam  could  have  been  sustained,  though 
this  was   not  necessary  to  the  decision. 

This  is  the  last  supreme  court  decision  on  the  subject, 
and  settles  nothing  as  to  the  power  to  establish  the  right 
of  action  by  statute.     This  question  must  now  be  consid- 

*  130  V.  S.  201,  9  Sup.  Ct.  461,  32  L.  Ed.  923. 

•  145  U.  S.  335,  12  Sup.  Ct  919,  36  L.  Ed.  727. 


202  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (CI).    10 

ered  in  reference,  first,  to  state  legislation,  and,  second,  to 
congressional  legislation. 


SAME— UNDER  STATE  STATUTES. 

113.  A  state  statute  may  give  a  remedy  for  death 
injuries,  enforceable  by  proceedings  in  rem 
in  the  admiralty  courts,  or  by  ordinary  suit 
in  the  common-law  courts. 

The  mere  fact  that  a  state  statute  may  affect  a  ship  or 
subjects  over  which  admiralty  has  jurisdiction  does  not  in- 
validate it.  There  are  numberless  cases  where  there  are 
concurrent  remedies  in  the  state  and  admiralty  courts. 
Hence  there  can  be  no  question  of  the  right  of  a  state  to 
give  the  remedy  by  common-law  action,  even  for  a  cause 
of  action  maritime  by  nature.  In  the  case  of  American 
Steamboat  Co.  v.  Chase,1  decided  in  1872,  which  was  a  suit 
at  common  law  for  a  death  in  the  waters  of  Rhode  Island 
caused  by  a  marine  collision,  the  Rhode  Island  statute  giv- 
ing the  right  of  action  at  common  law  was  held  valid,  not- 
withstanding the  point  made  by  defense  that  the  cause  of 
action  was  maritime  by  nature,  and  that  the  statute  was  an 
infringement  of  the  exclusive  admiralty  jurisdiction  of  the 
federal  courts.  The  court  forbore  to  decide  whether  it  was 
maritime  or  not,  but  held  that  the  state  could  authorize  a 
common-law  action  in  either  case. 

In  the  case  of  Sherlock  v.  Ailing,2  decided  in  1876,  an 
Indiana  statute  to  the  same  effect  was  attacked  on  ano'ther 
ground.  It  was  claimed  to  violate  the  commerce  clause  of 
the  federal  constitution,  as  imposing  a  new  burden  on  com- 
merce. But  the  court  held  that  it  affected  commerce  only 
indirectly,  and  that  in  such  matters  the  states  could  legislate 
as  long  as  congress  failed  to  legislate  on  the  subject. 

§  113.     1  16  Wall.  522.  21  L.  Ed.  309. 
2  93  U.  S.  99,  23  L.  Ed.  819. 


§    113)  AMERICAN    DOCTRINE    AS    TO    SURVIVAL.  203 

Hence,  as  far  as  this  special  subject  is  concerned,  it  would 
seem  clear  that  the  power  of  the  state  to  legislate  independ- 
ent of  congress  is  coincident  with  the  power  of  congress 
to  legislate  when  it  decides  to  act. 

This  is,  of  course,  subject  to  the  qualification,  explained 
in  a  former  connection,3  that  a  state  cannot  give  to  its 
courts  an  action  in  rem  pure  and  simple  to  enforce  a  mari- 
time cause  of  action. 

The  power  of  a  state  to  legislate  in  matters  of  admiralty 
cognizance  has  been  passed  upon  so  often  that  its  limits 
are  well  defined.  In  the  case  of  Ex  parte  McNiel,4  the 
court  says  that,  though  a  state  statute  cannot  confer  juris- 
diction on  a  federal  court,  it  may  give  a  substantial  right, 
which  is  enforceable  in  the  proper  federal  court,  whether 
equity,  admiralty,  or  common  law,  according  to  the  char- 
acter of  the  right  given.  In  other  connections  the  court 
has  frequently  decided  that,  if  the  subject-matter  is  mari- 
time, a  state  statute  may  annex  a  right  in  rem,  enforceable 
in  the  admiralty  court.  It  may  give  its  courts  jurisdiction 
even  of  admiralty  matters,  provided  it  does  not  give  them 
an  admiralty  procedure  in  rem.  Hence  a  state  statute  giv- 
ing a  right  of  action  in  rem  for  supplies  and  repairs  on 
domestic  vessels  is  valid  as  long  as  it  leaves  the  power  of 
enforcing  the  same  by  pure  proceedings  in  rem  to  the  fed- 
eral courts.5 

But  a  state  statute  giving  a  right  of  action  in  rem  for 
building  a  ship  does  not  confer  such  a  power  of  enforce- 
ment on  the  federal  courts,  as  such  a  transaction  is  not 
maritime  by  nature,  and  the  states  cannot  change  the  na- 
ture of  an  action  from  nonmaritime  to  maritime.6 

For  the  very  reason  that  it  is  not  maritime  they  can  give 
a  remedy  in   rem  to  their  own  courts  to   enforce  a  sliip- 

*  Ante,  p.  99. 

«  13  Wall.  236,  20  L.  Ed.  024. 

»  The  Glide,  167  U.  S.  606,  17  Sup.  Ct.  930,  42  L.  Ed.  296. 

•  Koacb  v.  Chapman,  22  How.  129.  1(5  I..  Ed.  291. 


204  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Ch.*10 

building  contract,  as  the  power  of  the  states  over  matters 
not  maritime  is  not  restricted  by  the  constitutional  pro- 
visions giving  the  federal  courts  exclusive  cognizance  of 
cases  of  admiralty  and  maritime  jurisdiction.7 

Hence,  if  the  subject-matter  discussed  in  this  chapter  is 
by  nature  maritime,  the  power  of  a  state  to  give  an  action 
in  rem  enforceable  in  an  admiralty  court,  in  the  absence  of 
congressional  legislation,  seems  to  follow  irresistibly. 

SAME— UNDER  CONGRESSIONAL  STATUTES. 

114.  Congress,  under  its  general  power  to  regulate 
maritime  subjects,  can  give  a  right  of  action 
in  admiralty  for  death  injuries;  and  a  con- 
gressional statute  would  supersede  any  state 
statutes  in  so  far  as  they  conflict  with  it. 

It  is  now  necessary  to  consider  how  far  congress  may 

legislate  on  the  subject. 

Here  it  must  be  remembered  that  the  federal  courts  as  a 
class  derive  their  admiralty  jurisdiction  direct  from  the  con- 
stitution, and  not  from  congressional  statutes.  How  far 
may  federal  statutes  affect  the  admiralty  jurisdiction?  There 
are  many  statutes  which  do  affect  it, — like  the  statutes  regu- 
lating the  rules  of  the  road  at  sea,  requiring  inspection  of 
steamers,  regulating  the  rights  of  merchant  seamen,  etc. 
It  was  at  one  time  supposed  that  similar  legislation  rested 
upon  the  power  to  regulate  commerce,  which  reasoning,  if 
sound,  would  have  defeated  the  power  of  regulating  vessels 
engaged  solely  in  internal  commerce.  And  so  it  was  held 
as  far  back  as  THE  GENESEE  CHIEF,1  decided  in  185 1, 
that  congress  derives  some  powers  of  legislation  from  the 
admiralty  clause  of  the  constitution,  and  is  not  limited  to 

7  Edwards  v.  Elliott,  21  Wall.  532,  22  L.  Ed.  4S7. 
S  114.     1 12  How.  443,  13  L.  Ed.  1058. 


§    114)  AMERICAN    DOCTRINE    AS    TO    SURVIVAL.  205 

the  commerce  clause.  This  has  been  reiterated  in  many 
later  cases,  notably  in  EX  PARTE  GARNETT,2  decided 
in  1 891. 

This  power  of  congress  to  regulate  admiralty  jurisdiction 
must  now  be  considered,  and  defined  more  accurately.  As 
the  grant  is  by  the  constitution  itself,  congress  cannot  change 
the  general  limits  or  bounds  of  the  admiralty.  But  within 
those  bounds,  as  understood  by  the  common  consent  of  en- 
lightened maritime  nations,  it  may  regulate  procedure,  and 
even  rights.  It  may  adopt  into  our  law  doctrines  of  marine 
law  found  in  other  maritime  codes,  though  our  admiralty 
courts  had  never  before  administered  such  a  doctrine.  It 
cannot  make  that  marine  which  is  not  marine  by  nature, 
but,  if  it  is  marine  by  nature,  and  so  recognized  in  maritime 
circles,  congress  may  give  it  a  place  in  our  admiralty  law 
which  it  had  never  had  before.  To  illustrate,  congress  could 
pass  a  statute  regulating  the  manner  in  which  approaching 
vessels  should  act  to  prevent  collision,  even  though  both 
were  enrolled  in  Virginia,  and  never  left  the  boundaries  of 
Virginia ;  but  congress  could  hardly  pass  a  statute  regu- 
lating the  precautions  which  approaching  railroad  trains 
should  take  to  avoid  collision,  and  relegate  their  enforce- 
ment to  the  admiralty  courts. 

This  subject  has  been  very  thoroughly  considered  by  the 
supreme  court  in  connection  with  the  statute  limiting  the 
liability  of  a  vessel  owner  for  torts  of  his  ship  or  crew  to 
the  value  of  the  ship.  This  act  was  passed  on  March  3, 
185 1.  In  the  case  of  Norwich  &  N.  Y.  Transp.  Co.  v. 
Wright,3  it  is  said  to  have  originated  in  the  maritime  law 
of  modern  Europe.  In  the  case  of  THE  SCOTLAND,4 
the  court,  repeating  what  it  had  said  in  THE  LOTTA- 
WANNA,6  says  that  the  foreign  maritime  codes  and  com- 

2  HI  U.  S.  1,  11  Sup.  Ct.  840,  35  L.  Ed.  631. 
s  13  Wall.  104,  20  L.  Ed.  585. 
*  105  U.  S.  24,  26  L.  Ed.  1001. 
e  21  Wall.  558,  22  L.  Ed.  654. 


206  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Chr  10 

pilations  were  operative  in  any  country  only  so  far  as  that 
country  chose  to  adopt  them,  and  not  as  authority  per  se ; 
but  that  congress  could  adopt  such  a  principle  into  our  law 
from  the  general  body  of  maritime  law.  In  the  case  of 
EX  PARTE'  PHENIX  INS.  CO.,6  an  application  was 
made  for  the  benefit  of  this  limitation  against  a  fire  on 
land  started  by  a  passing  steamer.  The  court  held,  how- 
ever, that  the  limitation  was  only  intented  to  protect  against 
such  causes  of  action  as  the  district  court  could  have  heard 
on  libel  in  rem  or  in  personam,  and  a  loss  consummate  on 
land  was  not  one  of  these.  In  other  words,  this  case  set- 
tled that  the  limitation  could  only  be  pleaded  against  such 
causes  of  action  as  were  in  their  nature  maritime,  no  matter 
in  what  forum,  state  or  federal,  they  were  asserted. 

Then  came  the  case  of  BUTLER  v.  BOSTON  &  S.  S. 
S.  CO.7  There  the  act  was  invoked  as  a  protection  against 
a  suit  on  account  of  the  death  of  a  passenger  on  Massa- 
chusetts waters,  brought  in  a  Massachusetts  court  under  a 
Massachusetts  statute.  If  this  cause  of  action  was  not  mari- 
time by  nature,  and  the  Massachusetts  act  could  not  have 
given  a  remedy  enforceable  in  the  admiralty,  it  would  have 
been  the  duty  of  the  court,  under  the  principles  of  EX 
PARTE  PHENIX  INS.  CO.,  to  have  refused  the  bene- 
fit of  the  limited  liability  act  against  the  suit  as  one  of  which 
a  district  court  would  not  have  had  original  jurisdiction  in 
admiralty.  But  the  court  decided  that  congress  had  power 
to  adopt  the  act  from  the  Continental  maritime  codes,  and 
to  extend  its  protection  to  death  cases,  and  that  this  power 
came  from  the  admiralty  and  maritime  clause  of  the  con- 
stitution, not  from  the  commerce  clause.8 

This  would  seem  to  settle  the  question  that  such  a  cause 
of  action  is  maritime  by  nature,  even  if  it  were  not  clear 

o  US  U.  S.  610,  7  Sup.  Ct.  25,  30  L.  Ed.  274. 
i  130  U.  S.  527,  9  Sup.  Ct.  612,  32  L.  Ed.  1017. 

s  See,  also,  The  Albert  Dumois,  177  U.  S.  240,  20  Sup.  Ot  595,  44 
L.  Ed.  751. 


§    115)  THE    LAW    GOVERNING.  207 

enough  already.  In  the  first  part  of  this  chapter  it  has 
been  shown  that  the  leading  Continental  maritime  nations 
recognized  such  a  right  of  action.  If  congress  can  ingraft 
on  our  maritime  law  their  limited  liability  act,  it  can,  on 
the  same  principle,  borrow  their  action  for  death  injuries. 

If  this  reasoning  and  the  above  authorities  establish  that 
such  a  cause  of  action  is  maritime,  two  results  follow : 

(i)  A  state  statute  can  be  made  to  regulate  the  right, 
and  can  give  it  in  personam  or  in  rem,  enforceable  in  the 
admiralty,  or  by  an  ordinary  personal  action  in  its  own 
courts. 

(2)  An  act  of  congress  may  also  regulate  the  subject, 
and  in  such  case  it  would  supersede  the  state  statute,  at 
least  so  far  as  foreign  vessels  are  concerned,  or  as  far  as 
it  would  regulate  the  remedy  in  admiralty. 

In  the  concluding  paragraph  of  the  opinion  in  BUTLER 
v.  BOSTON  &  S.  vS.  S.  CO.,  supra,  the  court  reserves  the 
question  whether  a  state  statute  can  have  this  effect.  This 
was  probably  a  mere  cautious  reservation  of  a  question  not 
directly  involved,  but  the  conclusion  would  seem  to  follow 
irresistibly  from  the  above  authorities. 

THE  LAW  GOVERNING. 

116.  The  right  of  action  is  governed  by  the  law 
of  the  place  where  it  arose,  or  by  the  law 
of  the  flag  if  it  arose  on  the  high  seas. 

It  is  an  important  question  what  law  governs  in  such 
cases.  A  state  statute  would  regulate  any  such  occurrence 
on  the  waters  within  its  jurisdiction,  and  any  negligent  kill- 
ing on  the  high  seas  of  any  one  on  a  vessel  would  be  gov- 
erned by  the  laws  of  the  vessel's  hailing  port.  This  has 
been  expressly  decided  in  New  York  *  on  grounds  that  seem 

§  115.     1  McDonald  v.  Mallory,  77  N.  Y.  54(5,  43  Am.  Rep.  664. 


208  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Ch .*  10 

conclusive,  though  a  contrary  conclusion  was  reached  by 
Judge  Sawyer  in  Armstrong  v.  Beadle.2 

It  is  a  favorite  principle  of  admiralty  that  its  rights  of 
action  follow  a  ship  around  the  world,  and  may  be  enforced 
in  any  port.  This  is  true  as  to  personal  injuries,  and  in 
such  cases  the  court  enforces  the  law  of  the  place  where 
the  cause  of  action  arose,  or  the  law  of  the  flag  if  it  arose 
on  the  high  seas,  and  if  shown  what  that  law  is.8 


EFFECT  OF  CONTRIBUTOBY  NEGLIGENCE. 
116.  Contributory  negligence  bars  recovery. 

There  is  one  anomaly  in  the  decisions  on  the  subject. 
Although  the  doctrine  finds  its  place  in  the  admiralty  law 
only  from  the  fact  that  it  is  maritime  by  nature,  it  is  held 
that,  even  in  the  admiralty  courts  in  suits  for  such  causes 
of  action  contributory  negligence  bars  recovery.1 

Admiralty  courts  have  their  own  doctrine  on  the  sub- 
ject of  contributory  negligence.  In  collision  cases,  where 
both  are  negligent,  the  damages  are  equally  divided. 

In  personal  injury  cases,  not  fatal,  the  damages  are  di- 
vided, not  equally,  but  much  as  the  judge  may  think  equi- 
table, considering  the  circumstances  and  the  relative  fault 
of  the  parties.2 

In  other  words,  in  all  other  admiralty  cases  contribu- 
tory negligence  reduces  recovery,  but  does  not  defeat  it. 
But  in  this  case  the  rigid  doctrine  of  the  common  law  as 
to  contributory  negligence  is  applied. 

2  5  Sawy.  484,  Fed.  Cas.  No.  541. 

»  The  Lamington  (D.  C.)  87  Fed.  752;  Panama  R.  Co.  v.  Shipping 
Co..  166  U.  S.  280,  17  Sup.  Ct.  572,  41  L.  Ed.  1004. 

§  116.     i  Robinson  v.  Navigation  Co..  20  C.  C.  A.  86,  73  Fed.  883. 

2  The  Max  Morris,  137  U.  S.  1,  11  Sup.  Ct.  29.  34  L.  Ed.  586,  and 
cases  cited. 


§    117)  CONSTRUCTION    OF    PARTICULAR    STATUTES.  209 

CONSTRUCTION  OF  PARTICULAR  STATUTES. 

117.  Assuming  the  power  of  legislation  over  the 
subject,  state  or  federal,  as  denned  in  the 
above  discussion,  the  question  whether 
any  given  statute  gives  a  remedy  in  rem  is 
a  mere  matter  of  construction. 

Statutes  worded  substantially  as  Lord  Campbell's  act  are 
usually  construed  as  not  so  intended.  It  has  been  seen 
that  the  house  of  lords  so  construed  it  in  THE  VERA 
CRUZ,1  and  that  the  supreme  court  so  construed  the  Louisi- 
ana statute  in  THE  CORSAIR.2  Judge  Benedict  placed  a 
similar  construction  on  the  New  York  statute  in  The  Sylvan 
Glen.3  And  Judge  Hughes  so  construed  the  Virginia  stat- 
ute in  The  Manhasset.4  Since  that  decision  the  Virginia 
statute  has  been  amended,  and  the  circuit  court  of  appeals 
for  this  circuit  has  held  that  in  its  present  form,  as  found 
in  section  2902  of  the  Virginia  Code  of  1887,  it  gives  the 
right  of  procedure  in  rem.5 

The  decisions  or  dicta  on  the  general  subject  have  been 
numerous.  In  view  of  its  importance,  many  are  collected 
in  a  footnote.8 

{  117.     1  10  App.  Cas.  59. 

2  145  U.  S.  335,  12  Sup.  Ct.  949,  36  L.  Ed.  727. 

»  CD.  C.)  9  Fed.  335. 

*  (D.  C.)  18  Fed.  918. 

b  The  Glendale  (U.  0.)  77  Fed.  906;  Id.,  26  C.  C.  A.  500,  81  Fed.  633. 

•  Plummer  v.  Webb,  1  Ware,  69,  Fed.  Cas.  No.  11,234;  Cutting  v. 
Seabury,  1  Spr.  522,  Fed.  Cas.  No.  3,521 ;   The  Sea  Gull,  Chase,  145, 

Cas.  No.  12,578;  The  Highland  Light,  Chase,  150,  Fed.  Cas.  No. 
<;,  !T7;  The  Charles  Morgan,  2  Flip.  274,  Fed.  Cas.  No.  2,618;  The 
Towanda,  Fed.  Cas.  No.  14,109;   Armstrong  v.  Beadle,  5  Sawy.  484, 

Cas.  No.  541;  The  David  Reeves,  5  Hughes,  89,  Fed.  Cas.  No. 
6,026;  The  Bpsllon,  0  Ben.  378,  Fed.  Cas.  No.  4,506;  Holmes  v.  Rail- 
road Co.  (D.  C.)  5  Fed.  75;    In  re  Long  Island  N.  S.  Passenger  & 

HUGHES.AD— 14 


210  ACTION    FOR    INJURIES    RESULTING    FATALLY.       (Ch.   10 

Freight  Transp.  Co.  (D.  0.)  5  Fed.  599;  The  Garland  CD-  C.)  5  Fed. 
924;  The  E.  B.  Ward,  Jr.  (C.  C.)  16  Fed.  255,  17  Fed.  456,  23  Fed.  900; 
The  Columbia  (D.  C.)  27  Fed.  704;  The  Cephalonia  (D.  O.)  29  Fed. 
332;  Id.  (O.  C.)  32  Fed.  112;  The  Ida  Cambell  (D.  C.)  34  Fed.  432; 
The  Wydale  (D.  C.)  37  Fed.  716;  The  A.  W.  Thompson  (D.  C.)  39 
Fed.  115;  The  North  Cambria  CD.  C.)  39  Fed.  615,  40  Fed.  655;  The 
Oregon  (D.  C.)  42  Fed.  78,  45  Fed.  62;  The  St.  Nicholas  (D.  C.)  49 
Fed.  671;  The  City  of  Norwalk  (D.  0.)  55  Fed.  98;  The  Transfer  No. 
4,  9  C.  0.  A.  521,  61  Fed.  364;  The  Premier  (D.  C.)  59  Fed.  797;  The 
Willamette,  18  C.  C.  A.  366,  70  Fed.  874,  31  L.  R.  A.  715;  In  re  Hum- 
boldt Lumber  Mfrs.  Ass'n  (D.  C.)  60  Fed.  428;  Id.,  19  0.  C.  A.  481,  73 
Fed.  239,  46  L.  R.  A.  264;  The  Oregon  (D.  C.)  73  Fed.  846;  Laidlaw 
v.  Navigation  Co.,  26  C.  C.  A.  665,  81  Fed.  876;  Brannigan  v.  Mining 
Co.  (C.  C.)  93  Fed.  164;  Rundell  v.  La  Compagnie  Generale  Trans- 
atlantique  (D.  C.)  94  Fed.  366;  Id.,  40  C.  C.  A.  625,  100  Fed.  655,  49 
L.  R.  A.  92;  The  Jane  Gray  (D.  C.)  95  Fed.  693;  Adams  v.  Railroad 
Co.  (0.  C.)  95  Fed.  938;  The  Onoko  (D.  C.)  100  Fed.  477;  Id.  (a  C. 
A.)  107  Fed.  984;  Vetaloro  v.  Perkins  (C.  C.)  101  Fed.  393. 


§    118)  TORTS    TO    THE    PROPERTY.  211 


CHAPTER  XI. 

OF  TORTS  TO  THE   PROPERTY,   AND   HEREIN  OP 
COLLISION. 

118.  Rules  for  Preventing   Collisions,   the  Different  Systems,   and 

the  Localities  where  They  Apply. 

119.  Preliminary  Definitions. 

120.  Distinctive  Lights  Prescribed  for  Different  Vessels. 

121.  Sound  Signals  in  Obscured  Weather. 

122.  Speed  in  Obscured  Weather. 

123.  Precautions  when  Approaching  Fog  Bank. 

124.  Steering  and  Sailing  Rules  in  Fog. 

RULES    FOR    PREVENTING    COLLISIONS,    THE    DIF- 
FERENT SYSTEMS,  AND  THE  LOCALITIES 
WHERE  THEY  APPLY. 

118.  There  are  four  different  sets  of  navigation 
rules  which  American  courts  may  have  to 
administer,  namely,  the  International  Rules, 
the  Inland  Rules  for  Coast  Waters,  the  Lake 
Rules,  and  the  Mississippi  Valley  Rules. 

The  torts  by  far  most  prolific  of  litigation  in  the  admiralty 
are  collisions  between  approaching  vessels.  To  that  cause 
is  due  the  loss  of  many  lives,  with  untold  valuable  property. 
Until  the  present  century  had  more  than  half  elapsed,  there 
were  no  rules  regulating  the  duties  of  approaching  vessels, 
and  navigation  was  a  happy-go-lucky  experiment,  in  which 
the  unfortunate  seafaring  man  was  at  the  mercy  not  only  of 
his  own  captain,  but  of  the  commanders  of  approaching  ves- 
sels as  well. 

The  earlier  statutes  contented  themselves  with  requiring 
vessels  to  carry  lights  at  night,  for  until  1838,  even  in  this 
country,  that  was  not  a  matter  obligatory,  though  the  courts 
had  attempted  to  take  the  matter  in  hand  by  holding  that  in 


212  TORTS  TO  THE  PROPERTY.  (Ch.  11 

case  of  collision  beween  a  dark  vessel  and  a  lighted  vessel 
they  would  hold  the  dark  vessel  in  fault.1 

In  England,  though  special  statutes  had  prescribed  rules 
for  special  cases,  no  code  of  rules  intended  to  regulate  the 
navigation  of  vessels  in  relation  to  each  other  was  promul- 
gated until  the  statute  of  25  &  26  Vict,  put  in  force  as  of 
June  1,  1863,  the  regulations  prescribed  by  the  orders  in 
council.  These  were  intended  to  prescribe  not  only  the 
lights  which  vessels  must  carry  at  night,  but  all  possible  con- 
tingencies, including  their  duties  in  a  fog,  the  relative  duties 
of  steamer  to  steamer,  sail  to  sail,  and  steamer  to  sail.  They 
were  enacted  in  substantially  the  same  form  by  congress  on 
April  29,  1864,  and  now  constitute  section  4233,  Rev.  St. 

u.  s. 

These  rules,  however,  though  regulating  lights,  and  the 
proper  methods  of  steering  and  sailing,  prescribed  no  signals 
except  during  fog.  This  defect  in  our  country  was  remedied 
by  the  board  of  supervising  inspectors,  who,  by  virtue  of  au- 
thority conferred  on  them  by  section  4412,  Rev.  St.  (to 
establish  regulations  to  be  observed  by  steam  vessels  in 
passing  each  other,  copies  of  such  regulations  to  be  posted 
in  conspicuous  places  on  such  steamers),  provided  signals 
by  whistle,  which  enabled  masters  of  approaching  vessels  to 
indicate  to  each  other  their  exact  intentions.  These  rules 
governed  all  vessels  in  American  waters, — even  foreign  ves- 
sels.2 Though  admirable  in  their  general  scope,  they  were 
yet  far  from  perfect,  and  the  next  advance  was  the  enact- 
ment of  the  International  Rules  of  1885.  They  went  into 
force  in  this  country  on  March  3,  1885,  but  they  were  ex- 
pressly limited  to  the  high  seas  and  coast  waters.  And  so  we 
had  two  sets  of  rules  in  force, — the  rules  of  1864,  embodied  in 
section  4233,  Rev.  St.,  supplemented  by  the  Supervising  In- 
spectors' Rules,  all  applying  only  to.  inland  waters,  and  the 

J  118.     1  The  Osprey,  1  Spr.  245,  Fed.  Cas.  No.  10,606. 
a  The  Sarruatiau  (C.  C.)  2  Fed.  911. 


§    118)  RULES    FOR    PREVENTING    COLLISIONS.  213 

International  Rules  of  1885,  applying  to  the  high  seas  and 
coast  waters. 

In  the  case  of  THE  DELAWARE,3  the  supreme  court 
decided  that  the  line  between  the  two  was  the  place  of  taking 
a  local  pilot ;  that  everything  on  regular  pilotage  ground 
was  inland,  and  everything  outside  was  high  seas  or  coast 
waters.  In  1889  representatives  from  the  leading  maritime 
nations  met  in  Washington  by  invitation  of  our  government, 
still  further  elaborated  the  code  of  navigation,  and  recom- 
mended to  their  respective  principals  to  adopt  the  result  of 
their  deliberations.  On  August  19,  1890,  congress  enacted 
it  into  law,  to  go  into  effect,  however,  at  a  time  to  be  fixed  by 
presidential  proclamation. 

In  some  particulars  these  rules  were  unsatisfactory,  and 
they  remained  in  a  state  of  suspended  animation  till  July  1, 
1897. 

They  were  further  amended  by  act  of  May  28,  1894,4  and 
act  of  June  10,  1896,5  and  on  December  31,  1896,6  the  proc- 
lamation of  the  president  formally  put  them  in  force  as  of 
July  1,  1897. 

These  rules  purported  to  apply  to  "the  high  seas  and  all 
waters  connected  therewith  navigable  by  seagoing  vessels." 
But  its  thirtieth  article  provided  that  nothing  in  them  should 
interfere  with  the  operation  of  a  special  rule,  duly  made  by 
local  authority,  relative  to  the  navigation  of  any  harbor, 
river,  or  inland  waters. 

By  act  of  February  19,  1895,7  congress,  acting  under  this 
saving  clause,  kept  in  force  the  rules  found  in  section  4233, 
Rev.  St.,  and  the  Inspectors'  Rules  supplementing  them,  for 
harbors,  rivers,  and  inland  waters  (not  including  the  Great 
Lakes  and  their  tributaries),  declared  them  rules  made  by 

»  161  U.  S.  459,  16  Sup.  Ct  516,  40  L.  Ed.  771, 
♦  28  Stat.  82. 
«  I'D  Stat.  381. 
«'2U   Slur.  885. 

7  28  Stat  G72. 


214  TORTS  TO  THE  PROPERTY.  (Ch.  11 

local  authority,  and  directed  the  secretary  of  the  treasury  to 
define  the  lines  between  such  waters  and  the  high  seas, 
which  was  done.  But  by  the  act  of  June  7,  1897,8  congress 
codified  the  inland  rules  also,  making  them  apply  on  all  har- 
bors, rivers,  and  inland  waters,  except  the  Great  Lakes,  the 
Red  River  of  the  North,  and  the  waters  emptying  into  the 
Gulf  of  Mexico.  This  act  repealed  sections  1  and  3  of  the 
act  of  February  19,  1895,  but  left  section  2  of  that  act  (by 
which  the  secretary  of  the  treasury  was  directed  to  define 
the  lines  between  the  high  seas  and  inland  waters)  still  in 
force.  These  rules  went  into  effect  on  October  1,  1897. 
Both  these  rules  and  the  International  Rules  were  slightly 
amended  by  the  act  of  February  19,  1900,9  prescribing  the 
lights  required  of  steam  pilot  vessels. 

Navigation  on  the  Great  Lakes  is  regulated  by  the  act  of 
February  8,  1895, 10  which  applies  to  the  Great  Lakes  and 
their  connecting  and  tributary  waters  as  far  east  as  Mon- 
treal. 

Navigation  on  the  Mississippi  river  as  far  down  as  New 
Orleans,  also  on  its  tributaries  and  on  the  Red  River  of  the 
North,  is  governed  still  by  the  old  rules  found  in  section 
4233,  Rev.  St.,  and  amendments  and  the  pilot  rules  for  west- 
ern rivers  supplementing  them. 

Hence  the  courts  may  be  required  to  administer  any  one 
of  four  sets  of  rules : 

(1)  The  International  Rules  for  collisions  on  the  high  seas. 

(2)  The  Inland  Rules  for  collisions  on  coast  waters  or 
waters  connecting  therewith,  inside  of  the  dividing  lines 
fixed  by  the  secretary  of  the  treasury. 

(3)  The  Lake  Rules  for  the  Great  Lakes  and  their  ad- 
jacent streams. 

(4)  The  Mississippi  Valley  Rules. 

And,  besides  all  these,  the  courts  have  held  that  vessels 
navigating  any  given  waters  are  bound  to  observe  rules 

«30  Stat.  90.  »31  Stat.  30.  10  2S  Stat.  045. 


§    119)  PRELIMINARY    DEFINITIONS.  215 

made  by  municipal  or  state  authority  for  that  locality.  For 
instance,  a  New  York  statute  requiring  boats  navigating  the 
East  river  to  keep  in  mid-stream,  away  from  the  docks,  so 
as  to  allow  unimpeded  ingress  to  them,  has  been  held  ob- 
ligatory on  vessels.11 

Many  ports  abroad  have  their  local  rules,  and  these  are 
enforced  by  the  courts.12 

Even  local  customs  not  emanating  from  legislative  au- 
thority are  binding.13 

Though  there  are  striking  differences  between  these  four 
sets  of  rules,  their  general  scheme  is  the  same,  and  therefore 
the  International  Rules  will  be  made  the  basis  in  this  dis- 
cussion, though  attention  will  be  directed  to  some  of  the 
more  important  differences.  It  will  be  found  that  they  con- 
stitute a  common  language  of  the  sea,  by  which  approaching 
navigators,  no  matter  what  their  nationality,  may  speak  to 
each  other  in  tones  understood  of  all  seafaring  men.  Under 
them,  if  followed,  collisions  need  never  occur,  unless  by 
some  negligence  or  inattention  which  no  rules  can  prevent ; 
for  in  this,  as  in  the  other  affairs  of  life,  the  personal  equa- 
tion cannot  be  completely  eliminated. 

PRELIMINARY  DEFINITIONS. 

119.  The  first  aim  of  the  rules  is  to  classify,  for  the 
purpose  of  the  regulations,  steam  vessels  and 
sailing  vessels  and  vessels   under  way,  etc. 

The  relative  duties  of  steam  and  sail  vessels  and  of  vessels 
under  way  and  vessels  at  anchor  are  so  different  (as  will  ap- 

ii  The  Ivanhoe,  7  Ben.  213,  Fed.  Cas.  No.  7,113;  The  Bay  State, 
3  Blatchf.  48,  Fed.  Cas.  No.  1,149;  The  Favorita,  18  Wall.  598,  21 
L.  Ed.  856. 

12  The  Margaret,  9  App.  Cas.  873;  The  Spearman,  10  App.  Cas. 
27G. 

i3  The  Fyenoord,  Swab.  374;  THE  VICTORY,  168  TJ.  S.  410.  18 
Sup.  Ct.  14'J,  42  L.  Ed.  519. 


216  TORTS    TO    THE    PROPERTY.  (Ch.   11 

pear  hereafter)  that  the  first  effort  of  the  rules  is  to  distin- 
guish these  cases  closely.  Accordingly,  in  the  preliminary 
definition,  every  vessel  under  sail,  even  though  by  build  a 
steamer,  is  treated  as  a  sail  vessel,  and  every  vessel  under 
steam  or  propelled  by  machinery  is  considered  a  steam  ves- 
sel. This  latter  definition  would  include  electric  or  naphtha 
launches,  which,  indeed,  as  far  as  the  local  rules  are  con- 
cerned, are  brought  into  the  category  of  steam  vessels  by  ex- 
press act  of  congress.1  On  the  other  hand,  a  broken-down 
steamer,  slowly  finding  her  way  into  port  under  sail,  is,  as 
to  other  vessels,  considered  a  sail  vessel. 

So,  too,  in  order  to  avoid  any  possible  misunderstanding, 
a  vessel,  even  though  her  headway  is  killed  in  the  water,  is 
considered  under  way,  unless  she  is  at  anchor,  or  tied  to  the 
shore,  or  aground.  The  reason  is  that,  unless  she  is  thus 
fastened  to  something,  a  turn  of  her  engines  may  put  her 
under  way,  and  therefore  she  should  be  avoided. 

DISTINCTIVE    LIGHTS    PRESCRIBED    FOR    DIFFER- 
ENT VESSELS. 

120.  The  next  aim  of  the  rules  is  to  indicate  to 
other  vessels  the  character  and  course  and 
bearing  of  a  neighboring  vessel,  and  whether 
she  is  in  motion.  This  is  done  by  the  use  of 
distinctive  lights,  -white  and  colored,  in  vari- 
ous combinations,  for  unincumbered  steam- 
ers, incumbered  steamers,  sailing  vessels, 
etc. 

The  first  thirteen  articles  regulate  the  all-important  sub- 
ject of  vessels'  lights. 

After  defining  the  word  "visible"  as  meaning  visible  on  a 
dark  night  with  a  clear  atmosphere,  it  is  provided  that  the 
lights  prescribed  shall  be  shown  from  sunset  to  sunrise,  and 

§  119.     i  29  Stat.  4S9. 


§    120)       DISTINCTIVE    LIGHTS    FOR    DIFFERENT    VESSELS.  217 

that  no  others  which  could  be  mistaken  for  them  shall  be 
shown.  This  requirement,  however,  does  not  exempt  a  ves- 
sel from  taking  proper  measures  to  avoid  another  without 
the  lights  if  she  can  be  seen,  as  is  frequently  the  case  just 
after  sunset,  or  on  a  clear  moonlight  night,  but  it  casts  on 
the  offending  vessel  the  burden  of  showing  that  her  offense 
not  only  did  not,  but  could  not  possibly,  have  contributed 
to  the  accident.1 

The  first  effort  is  to  adopt  distinctive  lights  for  different 
classes  of  vessels,  so  that  steamers  unincumbered  or  with 
tows,  sail  vessels,  small  craft,  and  special  kinds  of  vessels, 
like  pilot  boats  and  fishing  vessels,  can  announce  their  char- 
acter at  a  glance.  This  is  accomplished  by  the  use  of  white 
lights,  colored  lights,  and  flare-up  lights  in  various  combina- 
tions. The  colored  lights  are  carried  on  the  sides  of  the 
vessel,  the  white  lights  near  amidships,  and  at  an  elevation. 

{1)  Unincumbered  Steamers  {article  2). 

An  unincumbered  steamer  under  way  carries  a  white  light 
well  forward,  at  least  twenty  feet  above  the  hull,  strong 
enough  to  show  five  miles,  but  with  a  board  behind  it,  so 
arranged  that  it  cannot  be  seen  from  behind.  In  the  lan- 
guage of  the  rule,  it  shows  twenty  points.  As  there  are 
thirty-two  points  in  all,  this  makes  it  show  two  points  abaft 
the  beam  on  each  side ;  so  that  overtaking  vessels  cannot 
see  this  special  light  unless  they  are  nearly  up  to  a  point 
abeam.  This  is  called  the  "masthead  light,"  and  is  the  white 
light  usually  carried  by  seagoing  vessels.  This  light,  in  the 
Inland  Rules,  need  not  be  twenty  feet  above  the  hull. 

Steamers,  however,  instead  of  carrying  this  single  white 
light,  are  allowed  the  option  of  substituting  two  white  lights. 
In  this  case  an  additional  white  light  is  placed  aft  amidships, 

§  120.  i  The  Kirkland,  5  Hughes,  109,  48  Fed.  760;  The  Tillie, 
13  Blatchf.  514,  Fed.  Cas.  No.  14,049;  THE  PENNSYLVANIA,  19 
Wall.  125,  22  L.  Ed.  148. 


21 S  TORTS    TO    THE    PROPERTY.  (Ch.   11 

at  least  fifteen  feet  higher  than  the  bow  light.  This  is  usu- 
ally called  the  "flagstaff  light,"  and  differs  from  the  other 
in  having  no  screen,  and  therefore  in  showing  all  around 
the  horizon.  These  two  lights  possess  the  important  ad- 
vantage of  giving  a  range,  and  thus  announcing  the  exact 
direction  in  which  their  bearer  is  moving.  This  is  not  im- 
portant at  sea,  where  there  is  plenty  of  room  ;  but  it  is  im- 
portant in  narrow,  crowded,  or  devious  channels,  and  hence 
the  river  and  bay  steamers  usually  adopt  this  plan.  In  the 
Lake  Rules  this  is  obligatory  on  steamers  over  150  feet  reg- 
ister length. 

The  colored  lights  prescribed  for  steamers  are:  On  the 
starboard  or  right-hand  side,  a  green  light  strong  enough  to 
be  visible  at  least  two  miles,  and  fitted  with  screens,  so  ar- 
ranged that  it  will  not  show  backwards  till  an  approaching 
vessel  is  within  two  points  of  abeam,  and  that  it  will  not 
show  across  the  ship;  in  other  words,  it  must  only  show 
from  right  ahead  to  two  points  abaft  the  beam.  On  the 
port  or  left-hand  side  there  is  a  red  light  screened  in  the 
same  way.  Thus  a  vessel  moving  right  ahead  in  exactly 
the  opposite  direction  would  see  both  colored  lights  (or 
side  lights  as  they  are  usually  called)  and  the  masthead  light, 
or  the  two  range  lights  in  line,  would  know  that  she  was 
meeting  a  steamer,  and  would  govern  herself  accordingly. 

In  the  Mississippi  Valley  Rules,  steamers  carry  simply  the 
colored  lights,  attaching  them  to  their  respective  smoke- 
stacks, and  arranging  them  to  show  only  forward  and 
abeam.2 

(#)  Steamers  with  Tows  {article  3). 

Let  us  now  suppose  that  our  steamer  takes  another  vessel 
in  tow.  How  does  she  announce  the  fact  to  her  marine 
neighbors?  She  accomplishes  it  by  additional  white  lights. 
If  she  uses  the  masthead  light,  she  hangs  another  one  six 

a  See  Pilot  Rule  No.  10  for  Western  Rivers. 


§    120)       DISTINCTIVE    LIGHTS    FOR    DIFFERENT    VESSELS.  219 

feet  under  it,  and  screened  just  like  it,  and  still  another  if 
her  tow  consists  of  more  than  one  vessel,  and  is  over  600 
feet  long. 

Here  there  is  a  slight  difference  between  the  Interna- 
tional Rules  and  the  Local  Rules.  Under  the  latter  she  puts 
the  additional  light  or  lights  under  the  after-range  light, 
three  feet  apart,  and  uses  for  the  purpose  lights  which,  like 
it,  show  all  around  the  horizon.  Tugs  in  harbor  work  al- 
most invariably  use  this  latter  rig. 

The  Lake  Rules  require  only  one  towing  light,  no  matter 
how  long  the  tow,  and  a  special  light  if  the  tow  is  a  raft. 

The  Mississippi  Valley  Rules  (where  unincumbered  river 
steamers  have  no  white  lights)  require  two  vertical  towing 
lights  forward,  arranged  to  show  an  arc  like  the  masthead 
lights. 

Hence  an  approaching  vessel,  seeing  these  "towing"  or 
"vertical"  lights,  as  they  are  usually  called,  knows  that  it  is 
meeting  a  steamer  with  a  tow,  and  must  regulate  its  naviga- 
tion not  only  in  reference  to  the  tug,  but  the  other  vessel 
behind  it. 

(3)  Special  Lights  (article  5). 

Vessels  not  under  command  carry  two  vertical  red  lights 
at  night,  showing  all  around  the  horizon,  or  two  black  balls 
by  day ;  and  vessels  laying  telegraph  cables  have  peculiar 
lights,  warning  other  vessels  of  their  mission.  The  Inland 
Rules,  Lake  Rules,  and  Mississippi  Valley  Rules  have  no  cor- 
responding lights  or  balls. 

(4.)  Sail  Vessels  and  Vessels  Towed  (article  5). 

These  carry  the  two  colored  or  side  lights  prescribed  for 
steamers,  and  no  others.  Hence  a  mariner  seeing  only  a 
colored  light  or  lights  on  a  vessel  knows  that  it  is  a  sail 
vessel,  or  a  vessel  towed.  If,  at  a  second  glance,  he  sees  no 
steamer  in  front  showing  the  tow  lights  just  described,  he 
knows  it  is  a  sail  vessel. 


220  TORTS  TO  THE  PROPERTY.  (Cb.  11 

(5)  Small  Vessels  (article  6). 

These  can  carry  movable  colored  lights  and  show  them 
to  an  approaching  vessel.  The  International  Rules  and  the 
Lake  Rules  do  not  define  what  is  meant  by  a  small  vessel ; 
the  corresponding  inland  rule  defines  it  as  a  vessel  of  less 
than  ten  gross  tons. 

(6)  Small  Steam  and  Sail  Vessels  and  Open  Boats  (article  7). 
Steam  vessels  under  40  tons  and  sail  vessels  or  oar  ves- 
sels under  20  tons  gross  may  elect  a  different  rig  under  the 
international  rule.  The  steamers  may  have  a  small  white 
light  forward  and  a  combined  lantern,  showing  red  and 
green  on  the  proper  sides,  behind  the  white  light,  and  below 
it ;  the  sail  or  oar  vessel  may  have  a  similar  combination 
green  and  white  light,  to  be  exhibited  on  the  approach  of 
another  vessel ;  and  rowboats  may  have  a  white  lantern  to 
be  shown  when  needed.  The  corresponding  inland  rule 
omits  this  provision  except  for  rowboats.  The  Lake  Rules 
permit  a  combined  lantern  on  open  boats,  and  the  Missis- 
sippi Valley  Rules  permit  it  on  boats  under  ten  tons  pro- 
pelled by  gas,  fluid,  naphtha,  or  electric  motors. 

(7)  Pilot  Vessels  (article  8). 

These  show  a  white  light  at  the  masthead,  visible  all 
around,  and  a  flare-up  light  every  fifteen  minutes,  to  attract 
attention.  When  not  on  their  station,  they  exhibit  the  or- 
dinary lights.  If  it  is  a  steam  pilot  boat  on  its  station,  it 
must,  by  the  act  of  February  19,  1900,3  amending  the  In- 
ternational Rules  and  Inland  Rules,  show  a  red  light  im- 
mediately under  the  masthead  light,  and  visible  all  around, 
with  the  colored  side  lights  if  not  at  anchor,  and  without 
them  if  at  anchor. 

(8)  Fishing  Vessels  (article  9). 

The  International  Rule  on  this  class  is  not  of  interest. 
The  corresponding  Inland  Rule  provides,  in  substance,  that 

*  31  Stat.  30. 


§    120)       DISTINCTIVE    LIGHTS    FOR    DIFFERENT    VESSELS.  221 

when  not  fishing   they  carry  the  ordinary  lights,  and  when 
fishing  they  use  a  special  rig. 

The  International  Rules  make  no  provision  for  a  large 
class  of  craft  common  in  American  waters,  such  as  rafts, 
mud  scows,  etc.  The  Inland  Rules  leave  this  to  the  super- 
vising inspectors.  By  act  of  March  3,  1893,4  this  power  had 
been  expressly  conferred  on  the  supervising  inspectors  as 
far  as  barges  and  canal  boats  were  concerned.  Accordingly, 
at  their  session  in  1894,  they  provided  a  multitude  of  rules 
for  such  boats  towing  tandem,  or  in  tiers,  or  alongside, 
which  it  is  hardly  worth  while  to  explain  in  detail.  The 
mud  scows  so  common  around  dredging  machinery  in  our 
harbors  are  required  to  carry  a  white  light  at  each  end,  not 
less  than  six  feet  above  the  deck.  The  Inland  Rules  and 
Lake  Rules  also  empowered  the  supervising  inspectors  to 
make  similar  regulations. 

(9)  Overtaken  Vessels  (article  10). 

It  is  obvious  from  the  preceding  explanations  that  a 
steamer  rigged  with  the  masthead  light  instead  of  the  range 
white  lights  and  a  sail  vessel  or  vessels  in  tow  cannot  be 
seen  from  behind,  as  all  their  lights  are  screened  so  as  to 
show  only  forward.  Hence  this  rule  .provides  that  the  ves- 
sel being  overtaken  shall  show  from  astern  a  white  light 
or  a  flare-up  light.  They  may  fix  this  light  permanently, 
or  merely  hold  it  there  sufficiently  long  to  give  the  approach- 
ing vessel  ample  notice ;  but,  if  fixed,  it  must  be  about  on 
a  level  with  the  side  lights,  and  so  screened  as  to  show  right 
back  over  an  arc  of  twelve  points,  or  135  degrees. 

The  Lake  Rules  (No.  12)  and  the  Mississippi  Valley  Rules 
require  sail  vessels,  on  the  approach  of  any  steamer  during 
the  night  time,  to  show  a  lighted  torch  upon  the  point  or 
quarter  to  which  such  steamer  shall  be  approaching. 

The  language  of  this  rule  is  broad  enough  to  include  a 
steamer  approaching  from  any  direction,  whether  the  sail 

«27  Stat.  557. 


222  TORTS  TO  THE  PROPERTY.  (Ch.  11 

is  at  anchor  or  not.  And,  accordingly,  there  were  several 
decisions  of  the  inferior  courts  holding  that  the  torch  must 
be  exhibited  under  all  circumstances.5 

But  in  THE  OREGON,6  the  supreme  court  held  that 
the  provision  was  intended  to  supply  an  obvious  defect  in 
the  old  rules  in  requiring  no  light  shown  to  overtaking  ves- 
sels, that  this  was  its  primary  object,  and  that  it  did  not 
apply  to  anchored  vessels.  If  the  side  lights  are  good,  it 
would  probably  not  be  necessary  to  show  it  to  steamers 
approaching  any  point  forward  of  the  beam,  though  there 
are  district  court  decisions  requiring  it. 

In  any  event,  the  International  and  Inland  Rules  require 
it  to  be  shown  only  to  overtaking  vessels , 7  except  as  an 
extra  precaution  under  article  12.8 

(10)  Anchor  Lights  (article  11). 

This  is  a  very  important  light  in  roadsteads  and  harbors. 
It  is  a  white  light,  placed  in  the  rigging  so  as  to  be  visible 
all  around  the  horizon  for  a  distance  of  at  least  one  mile. 
Vessels  under  150  feet  long  must  not  carry  it  over  20  feet 
above  the  hull ;  vessels  over  that  length  carry  it  from  20  to 
40  feet  above  the  hull.  If  the  vessel  is  over  150  feet  long, 
then  there  must  be  an  extra  light  astern.  It  need  not  nec- 
essarily be  forward  of  the  foremast,  but  may  be  in  the  fore- 
rigging,  if  the  view  is  unobstructed  all  around.9  A  vessel 
must  show  her  anchor  light  if  in  navigable  water,  even 
though  outside  the  channel  as  marked  by  the  buoys.10 

5  The  Lizzie  Henderson  (D.  O.)  20  Fed.  524;  The  Algiers  (0.  C.)  28 
Fed.  240. 

0  158  U.  S.  186,  15  Sup.  Ct.  804,  39  L.  Ed.  943. 

1  The  Algiers  (D.  C.)  38  Fed.  526. 

s  The  Excelsior  (D.  C.)  102  Fed.  652;  The  Robert  Graham  Dun  (C. 
C.  A.)  107  Fed.  994. 

•  The  Philadelphian  [1900]  Prob.  Div.  262. 
10  The  Oliver  (D.  G.)  22  Fed.  84S. 


§    121)  SOUND    SIGNALS    IN    OBSCURED    WEATHER.  223 


SOUND  SIGNALS  IN  OBSCURED  WEATHER. 

121.  Distinctive  sound  signals  are  prescribed  for 
different  vessels  as  precautions  in  obscured 
•weather,  to  be  used  -when  the  obscuration 
is  such  that  signals  can  be  heard  further 
than  lights  can  be  seen. 

The  Signals  Required. 

Article  15  regulates  these  signals  in  case  of  fog.  Steam- 
ers navigating  as  such  give  them  on  their  whistle  or  siren. 
Sail  vessels  in  motion,  or  vessels  being  towed,  give  them 
on  a  fog  horn. 

For  a  long  time  the  horn  used  on  sail  vessels  was  an  or- 
dinary tin  horn,  blown  by  the  breath.  But  this  was  too 
fatiguing  to  be  diligently  attended  to,  and  so  since  the  rules 
of  1885  it  has  been  required  to  be  sounded  by  "mechanical 
means."  Those  now  in  use  are  a  box  containing  a  bellows 
worked  by  a  crank.  The  blast  that  they  give  is  sufficient 
to  be  heard  a  long  distance.  So  particular  are  the  courts  to 
require  its  use  that,  if  a  mouth  horn  is  used,  and  a  collision 
occurs,  the  court  will  require  the  offending  vessel  to  show 
not  only  that  this  negligence  might  not  have  contributed  to 
the  collision,  but  could  not  possibly  have  done  so.1 

The  Lake  Rules  merely  require  for  sailing  vessels  an 
"efficient  fog  horn,"  and  do  not  require  it  to  be  sounded  "by 
mechanical  means." 

By  the  International  Rules  unincumbered  steamers  in  mo- 
tion sound  one  blast  every  two  minutes,  by  the  Inland  and 
Mississippi  Valley  Rules  they  sound  one  blast  every  minute, 
and  by  the  Lake  Rules  three  blasts  every  minute. 

By  the  International,  Inland,  and  Lake  Rules  sail  vessels 
blow  their  horns,  according  to  the  bearing  of  the  wind,  one 

§  121.  1  THE  MARTELLO,  153  U.  S.  64,  14  Sup.  Ct.  723,  38  L, 
Ed.  037;   The  Hercules,  26  C.  C.  A.  301,  80  Fed.  996. 


224  TORTS    TO    THE   PROPERTY.  (Ch.ll 

blast  for  the  starboard  tack,  two  for  the  port,  and  three  for 
the  wind  abaft  the  beam. 

The  Weather  in  Which  Signals  Required. 

As  to  the  weather  in  which  those  signals  should  be  given, 
the  first  law  required  it  to  be  given  in  "fog  or  thick  weather." 
Accordingly,  under  those  rules,  it  was  held  that  they  need 
not  be  given  in  snow  storms.2 

The  International  Rules  of  1885  extended  the  require- 
ments of  signaling  to  "fog,  mist,  or  falling  snow" ;  and  the 
present  rules  extend  it  to  "fog,  mist,  falling  snow,  or  heavy 
rain  storms,"  showing  a  constantly  increasing  vigilance. 
The  Lake  Rules  are  equally  rigid. 

It  is  not  easy  to  define  what  constitutes  fog  or  mist.  A 
mere  haze  in  the  atmosphere  could  hardly  come  under  the 
term.  Perhaps  the  best  definition  of  this  is  given  in  THE 
MONTICELLO,3  in  which  Judge  Lowell  says :  "What  is 
a  fog,  such  as  the  statute  intends?  Is  it  every  haze,  by  day 
or  night,  of  whatever  density?  To  give  the  statute  a  reason- 
able interpretation,  we  must  suppose  that  its  intent  is  to 
give  to  approaching  vessels  a  warning  which  the  fog  would 
otherwise  deprive  them  of.  By  day  there  must  be  fog 
enough  to  shut  out  the  view  of  the  sails  or  hull,  or  by  night 
of  the  lights,  within  the  range  of  the  horn,  whistle,  or  bell. 
It  means  that  a  safeguard  of  practical  utility  under  the  cir- 
cumstances should  be  provided.  If  it  be  entirely  plain,  un- 
der the  evidence,  that  the  ordinary  signals  are  sufficient, 
and  more  efficacious  than  the  horn  could  be,  the  horn  will 
not  be  required.  But  a  serious  doubt  upon  the  point  must 
weigh  against  the  vessel  failing  to  comply  with  the  statute. 
I  do  not  consider  it  to  be  enough  to  aver  and  prove  that 
the  lights  might  be  seen  in  time  to  avoid  serious  danger ; 
but,  where  it  is  evident  that  the  fog  signal  could  not  have 
been  so  useful  as  the  ordinary  signal,  it  need  not  be  used. 

2  The  Rockaway  (C.  C.)  25  Fed.  775. 

s  THE  MONTICELLO,  1  Low.  1S4,  Fed.  Cas.  No.  9.739. 


§    121)  SOUND    SIGNALS    IN    OBSCURED    WEATHER.  225 

Thus,  if  the  lights  could  be  plainly  and  easily  made  out  a 
mile,  and  the  fog  horn  could  not  be  heard  at  a  third  or  a 
quarter  of  that  distance,  I  cannot  suppose  that  such  a  state 
of  the  atmosphere  would  amount  to  a  fog  in  the  sense  of  the 
law.  It  is  to  guard  against  some  danger  which  the  fog 
would  or  might  cause,  and  from  which  the  horn  might  pos- 
sibly guard,  that  it  is  to  be  blown." 

This,  in  substance,  means  that,  if  the  weather  is  such  that 
the  whistles  can  be  heard  further  than  the  lights  can  be  seen, 
the  signals  should  be  given.  As  modern  whistles  are  very 
powerful,  and  the  side  lights  are  required  to  show  two  miles, 
the  logical  deduction  from  this  is  that,  if  the  mariners  can- 
not see  two  miles,  they  should  give  the  additional  warning 
of  the  signals.  In  practice  this  is  not  done.  And  yet,  when 
we  consider  that  two  vessels,  each  moving  fifteen  miles  an 
hour  (not  a  fast  rate  for  modern  steamers),  are,  when  two 
miles  apart  in  distance,  only  four  minutes  apart  in  time,  we 
see  that  but  little  time  is  left  for  reflection.  The  distance  at 
which  vessels  give  the  passing  signals  (explained  later  on)  is 
usually  taken  as  half  a  mile.  At  this  distance,  if  each  is 
moving  fifteen  miles  an  hour,  they  are  only  a  minute  apart 
in  time. 

Vessels  at  anchor  ring  every  minute  (every  two  minutes 
by  the  Lake  Rules)  a  bell  for  five  seconds.  Towing  vessels, 
and  vessels  under  way,  though  not  under  command,  give 
every  two  minutes  a  signal  of  one  long  blast,  followed  by 
two  short  ones.  It  is  optional  with  vessels  in  tow  whether 
to  give  this  signal  or  not,  but  they  shall  not  give  any  other. 
Small  sailing  vessels  or  boats  may  give  these  or  not,  but 
must  make  some  good  noise. 

By  the  Lake  Rules  towing  steamers  give  the  same  signals 
as  free  steamers,  and  the  tow  must  also  give  signals  with 
her  bell.  And  steamers  with  rafts  give  frequent  screech  or 
Modoc  whistles. 

HUQHES.AD.— 15 


226  TORTS  TO  THE  PROPERTY.  (Ch.  11 

SPEED  IN  OBSCURED  WEATHER. 

123.  In  obscured  -weather  vessels  must  go  at  a  mod- 
erate speed,  taking  all  circumstances  into 
consideration. 

Article  16  lays  down  the  vital  and  essential  rule  for  fogs. 
It  provides  that  every  vessel  shall  go  at  a  moderate  speed, 
having  careful  regard  to  the  existing  circumstances  and  con- 
ditions. This  term  "moderate  speed"  is  very  elastic  in  its 
meaning,  and  has  been  the  subject  of  much  judicial  discus- 
sion. It  varies  to  some  extent  with  the  character  of  the 
vessel,  and  to  a  very  great  extent  with  the  character  of  the 
locality.  A  speed  that  is  moderate  on  the  high  seas  out  of 
the  usual  track  of  navigation  would  be  highly  dangerous  in 
harbors  or  their  approaches.  A  moderate  speed  for  a 
steamer  would  be  an  immoderate  one  for  a  sail  vessel.  A 
speed  that  is  moderate  when  you  can  see  a  mile  would  be 
excessive  when  you  can  see  a  hundred  yards. 

It  would  be  impossible  to  review  even  a  small  part  of  the 
decisions  on  this  subject.  We  must  content  ourselves  with 
elucidating  a  few  general  principles. 

Requirement  of  Moderate  Speed  Applies  Alike  to  Sail  and 
Steam  Vessels. 

The  requirement  applies  as  well  to  sail  vessels  as  to 
steamers.  In  a  fog  they  must  not  only  give  their  signals 
properly,  but  they  must  shorten  sail  until  their  speed  is  just 
sufficient  for  steerage  way.  As  they  have  no  means  of  stop- 
ping and  backing,  like  steamers,  it  is  the  more  incumbent 
on  them  to  obey  this  rule. 

In  The  George  Bell,1  which  was  a  collision  on  the  Banks, 
the  fog  was  such  that  they  could  see  for  300  yards.  The 
court  held  that  a  speed  of  five  miles  an  hour  was  too  fast, 

§  122.     1  3  Hughes,  468,  Fed.  Cas.  No.  5,856. 


§    122)  SPEED    IN    OBSCURED    WEATHER.  227 

due  to  the  fact  that  the  ship  was  carrying  its  mainsail  and 
mizzensail. 

In  the  well-considered  English  case  of  THE  ZADOK,2 
a  sailing  vessel  was  held  at  fault  which  was  carrying  prac- 
tically all  her  canvas ;  and  the  true  criterion  was  announced 
to  be  the  ability  to  steer. 

"It  is  the  duty  of  the  ship,  whether  she  be  a  sailing  vessel 
or  a  steamer,  to  moderate  her  speed  as  much  as  she  can, 
yet  leaving  herself  with  the  capacity  of  being  properly 
steered." 

Steamers  must  Go  so  SIovj  as  to  he  Able  to  Stop  on  Seeing 
Other  Vessel. 

The  rule  requires  the  speed  of  steamers  to  be  such  that 
they  can  stop  on  seeing  the  approaching  vessel,  assuming 
her  also  to  be  going  at  a  moderate  speed.  This  seems  to  be 
the  result  of  the  recent  decision  of  THE  UMBRIA,8 
which  reviews  the  question  of  fog  speed  and  fog  maneuvers 
at  length.  Despite  the  high  authority  of  the  court,  and  the 
special  respect  which  marine  lawyers  pay  to  the  opinions  of 
Mr.  Justice  Brown,  this  does  not  seem  to  be  a  satisfactory 
or  practical  test.  In  the  first  place,  it  makes  us  measure  a 
man's  conduct  by  the  motions  of  the  other  vessel,  which  he 
could  not  have  known  at  the  time ;  and  we  are,  therefore, 
trying  him  on  facts  developed  long  afterwards  in  the  court 
room,  and  not  on  the  facts  as  they  appeared  to  him. 

In  the  next  place,  the  fog  may  be  so  thick  that  one  can 
hardly  see  the  stem  of  his  own  vessel,  much  less  an  ap- 
proaching vessel,  even  though  only  a  few  yards  off.  Hence 
the  rule,  carried  to  its  logical  consequences,  would  require 
the  vessel  to  anchor,  and  then,  as  Mr.  Justice  Clifford  says  in 
The  Colorado,4  she  is  in  danger  from  vessels  astern. 

In  the  next  place,  it  is  a  very  uncertain  test.     Different 

*  9  Prob.  Div.,  at  page  11G. 

«  L66  I'.  S.   HH,  17  Sup.  Ct.  G10,  41  L.  Ed.  1053. 

«  'Jl  U.  S.  692,  23  L.  Ed.  [il'J. 


228  TORTS    TO   THE   PROPERTY.  (Ch.   11 

steamers  can  stop  in  different  distances,  depending  on  the 
power  of  their  engines.  Hence  this  test  implies  that  the 
navigator  must  know  the  handiness  of  the  other  steamer  as 
well  as  his  own. 

There  is  another  rule,  much  simpler,  dependent  on  knowl- 
edge of  his  own  vessel  only,  and  in  its  practical  results  much 
safer.  It  is  laid  down  in  THE  ZADOK  CASE,  above 
cited,  and  in  many  supreme  court  cases  before  THE  UM- 
BRIA.  It  cannot  be  better  expressed  than  to  quote  Jus- 
tice Clifford's  opinion  in  The  Colorado :  6  "Very  slow  speed, 
just  sufficient  to  subject  the  vessel  to  the  command  of  her 
helm."  In  THE  MARTELLO,6  the  supreme  court  says 
that  the  vessel  must  "reduce  her  speed  to  the  lowest  possible 
point  consistent  with  good  steerageway." 

As  samples  of  what  speed  the  courts  consider  immoderate, 
we  might  cite  THE  PENNSYLVANIA,7  where  a  speed  in 
a  steamer  of  seven  miles  an  hour  at  a  point  two  hundred 
miles  out  at  sea,  but  in  the  track  of  navigation,  was  con- 
demned ;  and  THE  MARTELLO,  8  where  a  speed  of  six 
miles  an  hour  in  the  lower  harbor  of  New  York  was  thought 
too  fast. 

PRECAUTIONS    WHEN    APPROACHING    FOG    BANK. 

123.  Vessels  approaching  fog  banks  are  bound  to 
use  the  precautions  of  sound  signals  and 
moderate  speed. 

As  the  object  of  fog  signals  and  slow  speed  is  the  protec- 
tion of  other  vessels,  the  law  requires  a  vessel  to  take  these 
precautions  as  she  approaches  a  fog  bank,  and  even  before 

eld. 

e  153  U.  S.,  at  page  70,  14  Sup.  Ct.  723,  38  L.  Ed.  637. 

t  19  Wall.  125,  22  L.  Ed.  148. 

*  153  U.  S.  64,  14  Sup.  Ct.  723,  38  L.  Ed.  637. 


§    124)  STEERING    AND    SAILING    RULES    IN    FOG.  229 

she  enters  it,  for  she  cannot  know  what  is  in  the  bank  ahead 
of  her.1 

The  laws  of  acoustics  are  so  little  understood,  and  the  fail- 
ure to  hear  signals  in  fog  so  inexplicable,  that  such  failure 
is  not  negligence  under  the  decision.2 

STEERING  AND  SAILING  RULES  IN  FOG. 
124.  Steering  and  sailing  rules  do  not  apply  in  fog. 

In  a  fog,  when  vessels  cannot  see  each  other,  the  ordinary 
steering  and  sailing  rules  do  not  apply,  for  they  presuppose 
a  knowledge  of  the  other  vessel's  character,  bearing,  and 
course,  which  cannot  be  known  in  fog. 

"But  it  is  urged  that  the  Negaunee,  being  on  the  port  tack, 
was,  under  the  seventeenth  rule  of  section  4233,  Rev.  St.. 
required  to  keep  out  of  the  way  of  the  Portch;  that  the 
Portch  had  the  right  of  way,  and  was  to  hold  her  course, 
and  it  was  the  Negaunee's  duty  to  give  the  way  or  turn  out ; 
and  this  rule  would  be  aptly  invoked  if  the  proof  showed  that 
those  in  charge  of  the  Negaunee  had  sufficient  notice  of  the 
proximity  of  the  Portch  to  enable  them  to  execute  the 
proper  movements  to  give  the  Portch  the  way.  The  proof, 
however,  shows,  as  I  have  already  said,  that  at  the  time  the 
Negaunee's  officers  were  apprised  of  the  presence  of  the 
Portch  they  were  so  near  together,  and  a  collision  so  im- 
minent, that  it  was  futile  to  attempt  to  keep  out  of  the  way; 
and  it  seems  to  me  that,  under  the  circumstances,  rule  sev- 
enteen was  inoperative,  and  rule  twenty-four  of  the  same 
section,  which  required  that  due  regard  must  be  had  to  all 
the  dangers  of  navigation,  and  to  any  special  circumstances 
which  may  exist  in  any  particular  case  rendering  a  departure 
from  the  general  rules  necessary  in  order  to  avoid  immediate 

f  123.     1  The  Milanese,  4  Asp.  438;  The  Perkiomen  (D.  0.)  27  Fed. 
673:    The  Trave  (D.  C.)  55  Fed.  117. 
2  Spencer,  Marine  Coll.  138,  139. 


230  TORTS    TO    THE    PROPERTY.  (Ch.'ll 

danger,  became  the  guide  of  both  parties ;  that  is,  that  each 
party,  under  an  unexpected  impending  peril,  must  do  what 
he  can  promptly  to  avoid  it."  * 

"But  when  you  speak  of  rules  which  are  to  regulate  the 
conduct  of  people,  those  rules  can  only  be  applied  to  cir- 
cumstances which  must  or  ought  to  be  known  to  the  parties 
at  the  time.  You  cannot  regulate  the  conduct  of  people  as 
to  unknown  circumstances.  When  you  instruct  people,  you 
instruct  them  as  to  what  they  ought  to  do  under  circum- 
stances which  are,  or  ought  to  be,  before  them.  When  you 
say  that  a  man  must  stop  and  reverse,  or,  I  will  say,  slacken 
his  speed,  in  order  to  prevent  risk  of  collision,  it  would  be 
absurd  to  suppose  that  it  would  depend  upon  the  mere  fact 
of  whether  there  was  risk  of  collision,  if  the  circumstances 
were  such  that  he  could  not  know  there  was  risk  of  colli- 
sion. I  put  some  instances  during  the  argument  to  show 
that  that  was  so.  The  rule  says  that  a  steamer  approaching 
another  vessel  ought  to  slacken  her  speed  if.  by  going  on, 
there  would  be  risk  of  collision.  But,  suppose  the  night 
were  quite  dark,  and  the  other  ship  was  showing  no  light  at 
all,  it  would  be  wrong  to  say,  with  regard  to  the  conduct  of 
those  on  the  steamer,  that  when  they  have  not  the  means  of 
knowing,  and  could  not  possibly  know,  that  there  was  an- 
other ship  in  their  way,  or  near,  they  ought  to  see  that  the 
other  ship  was  in  the  way  or  approaching,  and  that  it  is  no 
excuse  that  they  did  not  see  them.  Take  another  case : 
If  two  vessels  are  approaching,  each  on  a  different  course, 
which  will  cause  them  to  meet  on  a  high  headland,  so  that, 
until  they  are  absolutely  close,  they  cannot  see  each  other, 
it  is  quite  obvious  that,  if  both  are  steamers,  they  ought, 
on  the  suggested  reading  of  the  rule,  to  stop  and  reverse. 
But  how  can  you  regulate  their  conduct  if  neither  can  see 
the  other  until  they  are  close  together?  It  is  absurd  to  sup- 
pose that  you  could  regulate  their  conduct,  not  with  regard 

§  124.     i  The  Negaunee  (D.  C.)  20  Fed.  921. 


§    124)  STEERING    AND   SAILING    RULES    IN    FOG.  231 

to  what  they  can  see,  but  to  what  they  cannot  see.  There- 
fore the  consideration  must  always  be,  in  these  cases,  not 
whether  the  rule  was  in  fact  applicable,  but  were  the  circum- 
stances such  as  that  it  ought  to  have  been  present  in  the 
rnind  of  the  person  in  charge  that  it  was  applicable?"8 

*  The  Beryl.  9  Prob.  Div.  138,  139. 


232  STEERING    AND    SAILING    KULES.  (Chi  12 

CHAPTER  XH. 

THE  STEERING  AND  SAILING  RULES. 

125-127.     Origin,  Reasons  on  Which  Based,  and  General  Application. 

128.  Sail  Vessels. 

129.  Steamers— The  Port-Helm  Rule. 

130.  The  Crossing  Rule. 

131.  Steam  and  Sail. 

132.  Privileged  Vessels. 

133.  Crossing  Ahead. 

134.  The  Stop  and  Back  Rule. 

135.  Overtaking  Vessels. 

ORIGIN,    REASONS    ON    WHICH    BASED,    AND    GEN- 
ERAL APPLICATION. 

125.  Rules  of  navigation  are  the  outgrowth  of  cus- 

toms. 

126.  They  are  evolved  from  the  comparative  ease 

of  handling  the  vessels,  the  rule  of  turn  to 
the  right,  and  the  question  whether  there  is 
risk  of  collision. 

127.  They  regulate   the    relations   of  sail   to  sail, 

steam  to  steam,  and  steam  to  sail. 

The  fourth  part  of  the  navigation  rules  is  the  most  im- 
portant of  all.  It  contains  the  steering  and  sailing  rules, 
and  prescribe  the  course  which  approaching  vessels  must 
take  to  avoid  each  other  in  every  conceivable  situation,  and 
the  signals  to  be  given  to  indicate  their  respective  inten- 
tions. 

These  rules,  in  the  main,  are  not  new.  They  are  mere 
affirmations  of  previous  long-established  maritime  customs, 
crystallized  at  last  into  positive  enactments. 


§§    125-127)       ORIGIN,  REASONS,  GENERAL  APPLICATION.  233 

Rea-ions  on  Which  Based* 

There  are  three  great  underlying  principles  from  which 
they  are  derived,  for  they  are  based  on  reason,  and  any  one 
fixing  firmly  in  his  mind  the  reasons  which  gave  them  birth 
can,  if  gifted  with  a  moderate  knowledge  of  navigation  and 
ship  construction,  think  them  out  for  himself. 

(i)  The  first  of  these  principles  is  that  the  less  manage- 
able type  of  vessel  is  privileged  as  regards  the  more  manage- 
able, and  the  latter  has  the  burden  of  avoiding  her.  For  exam- 
ple, sailing  vessels  are  favored  as  against  steamers,  anchored 
vessels  as  againsr  moving  vessels,  and  vessels  closehauled 
as  against  vessels  with  a  free  wind. 

(2)  Other  things  being  equal,  the  rule  of  the  road  at  sea 
is  the  same  as  on  land ;  and  the  endeavor  of  these  naviga- 
tion rules  is  to  make  vessels,  wherever  possible,  always  pass 
to  the  right,  like  two  vehicles  on  a  public  road. 

(3)  The  rules  are  only  intended  to  apply  when  vessels  are 
approaching  each  other  in  such  directions  "as  to  involve 
risk  of  collision."  A  detailed  examination  of  the  rules  will 
show  that  this  qualifying  phrase  is  embodied  in  nearly  every 
one  of  them.  The  mere  fact  that  vessels  are  in  sight  of,  or 
even  near,  each  other,  navigating  the  same  waters,  does  not 
bring  these  enactments  into  play.  If  their  courses  are  par- 
allel, and  sufficiently  far  apart  to  clear  with  a  safe  margin, 
or  if  they  are  divergent,  there  is  no  need  for  rules  of  nav- 
igation, just  as  there  is  no  need  for  rules  of  construction 
when  the  language  is  too  plain  to  need  construction. 

Risk  of  Collision. 

It  is  not  easy  to  define  as  matter  of  law  what  is  meant  by 
the  phrase  "risk  of  collision."  We  may  say,  in  the  language 
of  Justice  Clifford  in  The  Dexter,1  that  the  rules  are  obliga- 
tory if  the  vessels  are  approaching  in  such  directions  as  in- 
volve risk  of  collision  on  account  of  their  proximity  from  the 
time  the  necessity  for  precaution  begins. 

II   125-127.     1  23  Wall.  69,  23  L.  Ed.  SI. 


234  STEERING    AND    SAILING    RULES.  (Ch*.    12 

In  the  case  of  The  Milwaukee,2  it  is  said:  "Risk  of  col- 
lision begins  the  very  moment  when  the  two  vessels  have 
approached  so  near  each  other,  and  upon  such  courses,  that, 
by  departure  from  the  rules  of  navigation,  whether  from 
want  of  good  seamanship,  accident,  mistake,  misapprehen- 
sion of  signals,  or  otherwise,  a  collision  might  be  brought 
about.  It  is  true  that  prima  facie  each  man  has  a  right  to 
assume  that  the  other  will  obey  the  law.  But  this  does  not 
justify  either  in  shutting  his  eyes  to  what  the  other  may 
actually  do,  or  in  omitting  to  do  what  he  can  to  avoid  an 
accident  made  imminent  by  the  acts  of  the  other.  I  say  the 
right  above  spoken  of  is  prima  facie  merely,  because  it  is 
well  known  that  departure  from  the  law  not  only  may,  but 
does,  take  place,  and  often.  Risk  of  collision  may  be  said 
to  begin  the  moment  the  two  vessels  have  approached  each 
other  so  near  that  a  collision  might  be  brought  about  by 
any  such  departure,  and  continues  up  to  the  moment  when 
they  have  so  far  progressed  that  no  such  result  can  ensue." 

The  preliminary  to  the  steering  rules  gives  one  test  by 
which  to  determine  whether  risk  of  collision  exists.  It  is 
that  the  compass  bearing  of  the  approaching  vessel  does  not 
change.  If  their  courses  are  parallel,  a  sharp  angle  at  a  dis- 
tance becomes  larger  as  they  approach,  and,  conversely,  if 
the  angle  remains  constant,  their  courses  must  be  conver- 
ging. It  may  be  necessary  to  recur  to  the  meaning  of  this 
phrase  "risk  of  collision"  in  connection  with  the  separate 
rules. 

SAIL  VESSELS. 

128.  Which  of  two  sailing  vessels  approaching 
each  other  so  as  to  involve  risk  of  collision 
must  keep  out  of  the  way  of  the  other  is 
determined  by  their  respective  courses  and 
situations,  with  reference  to  the  direction 
of  the  wind  and  their  relative  positions. 

a  1  Brown,  Adm.  313,  Fed.  Cas.  No.  9,620. 


§  128) 


SAIL    VESSELS. 


235 


Sail  vessels  approaching  each  other  so  as  to  involve  risk 
of  collision  regulate  their  movements  as  follows  : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  closehauled. 

This  is  because  she  is  more  manageable.  The  wind  is  free 
when  the  vessel  could  shape  her  course  still  further  to  wind- 
ward.    Thus : 


A  must  keep  out  of  the  way  of  B.1 

(b)  A  vessel  which  is  closehauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  closehauled  on  the 
starboard  tack.  When  a  vessel  is  on  the  port  tack,  her  sails 
swing  over  the  starboard  side,  the  wind  being  on  her  port 
side,  and  vice  versa.  Hence  this  rule  is  based  on  the  prin- 
ciple of  turn  to  the  right.  The  vessel  closehauled  on  the 
starboard  tack  cannot  turn  to  the  right,  as  the  wind  is  on 
that  side  ;   therefore  the  other  one  must.     Thus : 


A.  must  keep  out  of  the  way.2 

§  128.  *  The  Robert  Graham  Dun,  17  C.  C.  A.  90,  70  Fed.  270; 
The  William  Churchill  (D.  C.)  103  Fed.  690. 

s  The  Ada  A.  Kennedy  (D.  C.)  33  Fed.  623;  The  Margaret  B.  Roper 
(D.  0.)  103  Fed.  3S6. 


236 


STEERING    AND    SAILING    RULES. 


(Ch.    12 


(c)  When  both  are  running  free,  with  the  wind  on  differ- 
ent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other.  This  also  springs 
from  the  rule  of  turn  to  the  right.     Thus: 


W 


A.  must  keep  out  of  the  way,  because  the  wind  facilitates 
her  porting  or  turning  to  the  right,  and  interferes  with 
the  other's  doing  it.3 

We  will  see  later  on  that,  with  two  steamers  as  in  the  dia- 
gram, the  rule  is  just  the  opposite.  B.  then  keeps  out  of  the 
way,  which  she  can  do  by  porting,  and  passing  astern,  as  a 
steamer  is  independent  of  the  wind. 

(d)  When  both  are  running  free  with  the  wind  on  the 
same  side,  the  vessel  which  is  to  the  windward  shall  keep 
out  of  the  way  of  the  vessel  which  is  to  the  leeward.    Thus : 


J> 


A.  keeps  out  of  the  way.  He  has  the  weather  gauge,  about 
which  we  read  so  much  in  naval  warfare  before  the  innova- 
tion of  steamers. 


»  The  Rolf,  1  0.  C.  A.  534,  50  Fed.  478. 


§  129)  STEAMERS.  237 

This  rule  is  based  on  the  fact  that  the  vessel  to  wind- 
ward is  the  more  manageable  of  the  two.4 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the 
way  of  the  other  vessel :    Thus  : 


A.  keeps  out  of  the  way  of  B. 
more  manageable.5 


J 


The  reason  is  that  she  is 


STEAMERS— THE   PORT-HELM   RULE. 

129.  Steamers,  meeting  end  on,  port  their  helms, 
and  pass  to  the  right,  indicating  their  inten- 
tion by  one  -whistle  each.  But,  if  they  are 
approaching  well  on  each  other's  starboard 
bow,  they  starboard,  and  pass  to  the  left, 
each  blowing  two  whistles. 

The  use  of  sail  vessels  is  becoming  more  restricted  every 
year,  and  a  vast  proportion  of  the  world's  commerce  is  now 
carried  in  steamers.  For  this  reason,  collisions  between 
steamers  constitute  the  bulk  of  the  cases  which  now  find 
their  way  into  the  courts. 

Article  18  embodies  the  first  and  most  important  rule  of 
those  governing  steamers.     It  says  that,  when  two  steam 

4  The  Nahor  (D.  C.)  9  Fed.  213. 

»  The  Mary  Augusta  (D.  C.)  55  Fed.  343. 


23S  STEERING    AND    SAILING    RULES.  (Ch.    1*2 

vessels  are  meeting  end  on,  or  nearly  end  on,  so  as  to  in- 
volve risk  of  collision,  each  shall  alter  her  course  to  star- 
board, so  that  each  may  pass  on  the  port  side  of  the  other. 
This  is  called  the  "port-helm  rule,"  as  it  takes  a  port  helm 
to  make  a  ship  move  to  starboard. 

Under  article  28,  the  steamer  indicates  her  intention  by 
Mowing  one  short  blast  of  about  one  second's  duration, 
which  is  answered  by  the  other  steamer,  and  thus  a  perfect 
understanding  is  established. 

Under  the  old  rules  it  was  a  matter  of  some  doubt  how 
near  the  steamers  must  be  meeting  end  on  in  order  to  bring 
this  rule  into  play.  The  present  article  in  the  explanatory 
paragraph  following  the  navigation  rule  itself  expresses  very 
clearly  the  result  of  the  decisions.  If  they  are  moving  on 
courses  that,  if  held,  would  pass  clear,  then  there  is  no  risk 
of  collision,  and  no  rule  is  necessary.1  If,  however,  by  day 
each  sees  the  other's  masts  in  a  line  with  his  own,  or  nearly 
so,  or  if  by  night  each  sees  both  side  lights  of  the  other, 
then  they  are  moving  right  at  each  other,  and  each  must 
port,  and  signify  by  his  one  blast  that  he  is  porting.2 

If,  on  the  other  hand,  it  is  a  case  of  red  light  to  red  light, 
or  green  light  to  green  light,  the  rule  does  not  apply.8 

The  Lake  Rule  is  the  same,  except  that  it  has  no  explana- 
tory note  as  to  the  cases  to  which  the  rule  applies.  But,  as 
that  note  is  a  mere  affirmation  of  the  decisions,  the  courts 
would  probably  apply  it. 

Both  the  Lake  Rules  and  the  Mississippi  Valley  Rules, 
as  supplemented  by  the  Supervising  Inspectors'  Regulations, 
are  much  influenced  by  the  necessity  of  allowing  for  the 
effect  of  the  current  on  ease  of  navigation.  It  is  a  general 
principle  that  a  boat  moving  against  the  current  is  more 

S  129.     1  The  City  of  Macon,  34  C.  C.  A.  302,  92  Fed.  207. 

2  The  Thingvalla,  1  0.  C.  A.  87,  48  Fed.  764. 

»  The  Manitoba,  122  U.  S.  97,  7  Sup.  Ct.  1158,  30  L.  Ed.  1095. 


§    129)  STEAMERS.  239 

manageable  than  one  moving  with  it,  and  that  the  latter 
should  have  the  greater  rights.4 

The  Inland  Rules,  so  far  as  they  apply  to  steamers,  go 
into  much  more  detail  than  the  International  Rules.  The 
one  corresponding  to  the  port-helm  rule  expressly  provides 
that  vessels  meeting  so  far  on  each  other's  starboard  side 
as  not  to  be  considered  head  and  head  may  give  two  blasts, 
and  starboard.    The  port-helm  rule  may  be  illustrated  thus : 


CEK        ^-<ZED 


The  starboard-helm  rule  may  be  illustrated  thus :  • 


c 


The  Inland  Rules  contain  other  provisions  under  this 
article  not  found  in  the  International  Rules.  For  instance, 
rule  3,  under  this  article,  provides  that,  if  either  of  two  ap- 
proaching vessels  fails  to  understand  the  course  or  inten- 
tion of  the  other,  he  shall  signify  it  by  giving  several  short 
and  rapid  blasts,  not  less  than  four,  of  his  steam  whistle.6 
These  are  called  the  "danger  signals,"  and  are  usually  the 

*  The  Galatea,  92  U.  S.  439,  23  L.  Ed.  727;  The  Diana  [1894]  App. 
Cas.  625. 

8  The  James  Bowen,  10  Ben.  430,  Fed.  Cas.  No.  7,192;  The  Ogdens- 
burgh,  5  McLean,  622,  Fed.  Oas.  No.  17,158. 

e  The  Mahar  &  Burns  (D.  C.)  10(J  Fed.  86. 


STEERING    AND    SAILING    RULES.  (Ch.    12 


last  despairing  wail  before  the  crash.  No  such  provision  is 
contained  in  the  International  Rules,  though  it  is  a  well-es- 
tablished practice  among  mariners.  Lake  Rule  26  pre- 
scribes substantially  the  same  rule  as  to  signaling  as  the 
above. 

Rule  5  of  the  Inland  Rules,  in  the  same  article,  requires 
steamers,  before  rounding  bends  in  a  river  or  channel  where 
the  view  is  cut  off,  to  blow  one  long  whistle  as  a  warning, 
and  requires  the  same  signal  from  vessels  leaving  a  dock. 
In  crowded  harbors,  or  much  frequented  channels  of  naviga- 
tion, this  is  a  very  important  precaution,  and  many  cases 
have  arisen  under  it.7 

Rule  8  regulates  overtaking  vessels.  It  corresponds  to 
International  Rule  24,  and  will  be  discussed  in  that  connec- 
tion. 

Rule  9  of  the  same  article  provides  that  the  passing  sig- 
nals must  only  be  used  by  vessels  in  sight  of  each  other, 
and  able  to  ascertain  each  other's  course  or  position.  When 
this  is  impossible  from  fog  or  other  cause,  then  fog  signals 
are  used.  International  Rule  28  also  provides  that  these 
signals  are  only  to  be  used  by  vessels  in  sight  of  each  other. 
But  Lake  Rule  23  requires  them  to  be  given  "in  all  weath- 
ers," which  makes  it  strikingly  different  from  the  other  rules. 

SAME— THE  CROSSING  RULE. 

130.  Of  two  crossing  steamers,  the  one  having  the 
other  on  her  starboard  bow  must  keep  out  of 
the  -way. 

Article  19  covers  the  case  when  two  steamers  are  cross- 
ing so  as  to  involve  risk  of  collision.  In  such  case  the  ves- 
sel which  has  the  other  on  her  starboard  side  must  keep  out 
of  the  way. 

-  The  Pekin  [1897]  App.  Cas.  532;  The  Gamma  (D.  C.)  103  Fed. 
703,  The  Chicago  (D.  C.)  101  Fed.  143;  The  Mourne  [1901]  Prob.  68. 


§    130)  STEAMERS.  241 

Vessels  are  crossing  when  they  show  opposite  sides  to 
each  other,  and  are  so  nearly  even  that  one  cannot  be  con- 
sidered an  overtaking  vessel.     Thus: 


A.  keeps  out  of  the  way. 

This  is  a  modification  of  the  port-helm  rule,  as  the  vessels 
ordinarily  pass  to  the  right  of  each  other.  The  cases  un- 
der this  rule  have  been  very  numerous.1 

The  difficulty  in  applying  this  rule  has  usually  arisen  in 
drawing  the  line  between  a  crossing  vessel  and  an  overtak- 
ing vessel.  In  the  above-cited  case  of  The  Cayuga,  the  su- 
preme court  made  it  a  crossing  case  where  one  vessel  was 
abaft  the  beam  of  the  other.  This  would  hardly  seem  to  be 
correct.  The  line  between  an  overtaking  vessel  and  a  cross- 
ing vessel  is  the  range  of  the  side  lights ;  that  is,  any  vessel 
two  points  or  less  abaft  the  beam  is  a  crossing  vessel,  any 
vessel  more  than  two  points  abaft  the  beam  is  an  overtaking 
vessel.2 

This  is  adopted  as  the  test  in  article  24,  and  therefore  the 
decision  in  the  Cayuga  Case  is  not  law  now,  if  it  ever  was. 
In  a  winding  river  it  is  frequently  difficult  to  say  whether 
two  ships  are  crossing  or  not.  In  such  case  the  question  is 
determined,  not  by  the  accidental  bearing,  but  by  the  general 
channel  course." 

§  130.  iThe  Cayuga,  14  Wall.  275,  20  L.  Ed.  828;  The  E.  A. 
Packer,  140  U.  S.  300,  11  Sup.  Ct.  794,  35  L.  Ed.  453;  THE  BREAK- 
WATER, 155  U.  S.  252,  15  Sup.  Ct.  99,  39  L.  Ed.  139. 

2  The  Auranla  (D.  C.)  29  Fed.  99. 

3  The  Velocity,  L.  R.  8  P.  C.  44;  The  Pekin  [1897]  App.  Cas.  532; 
The  L.  C.  Waldo,  40  C.  C.  A.  517,  100  Fed.  502. 

HUOHES.AD.— 16 


242  STEERING    AND   SAILING    RULES.  (Ch.   12* 


STEAM  AND  SAIL. 

131.  A  steamer  must  keep  out  of  the  way  of  a  sail 
vessel.  In  doing  so  she  must  allow  the  sail 
vessel  a  wide  berth. 

Article  20  regulates  their  relations,  and  provides  that, 
when  a  steam  vessel  and  a  sail  vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision,  the  steam  vessel 
shall  keep  out  of  the  way  of  the  sailing  vessel. 

This  rule  is  based  upon  the  greater  handiness  of  steamers, 
which  are  independent  of  wind  and  tide,  and  can  even  move 
backwards,  if  necessary.  It  often  looks  like  a  hard  rule,  as 
the  smallest  oyster  pungy  can  block  the  narrow  channel 
available  to  an  ocean  steamer.  As  it  is  based  upon  the 
greater  mobility  of  the  steamer,  the  courts  have  not  always 
enforced  it  rigidly  when  such  mobility  did  not  exist.  For 
instance,  a  tug  and  tow,  though,  in  the  eye  of  the  law,  one 
vessel,  and  that  a  steamer,  are  often  less  manageable  than  a 
sail  vessel.  The  tug  cannot  back,  and,  if  her  tow  is  large  or 
unwieldy,  cannot  turn  around  except  slowly.  She  is  less 
manageable  in  fact  than  a  sail  vessel  with  a  free  wind,  and 
hence  the  courts  have  more  than  once  held  the  sail  vessel  in 
such  circumstances  is  required  to  do  something.1 

The  question  would  turn  largely  on  the  degree  of  her  em- 
barrassment, with  the  presumptions  against  the  tug,  for  ex- 
ceptions to  the  rules  must  be  introduced  with  great  caution.2 
A  steamer  may  take  her  own  method  of  passing  a  sail  ves- 
sel. The  mere  approach  of  the  two  vessels  does  not  bring 
about  risk  of  collision.  The  steamer  may  assume  that  the 
sail  vessel  will  do  her  duty,  and  do  nothing  to  embarrass 
her.     Hence  the  steamer  may  shape  her  course  so  as  to 

§  131.     1  The  Marion  W.  Page  (D.  G.)  36  Fed.  329;  The  Minnie  O. 
Taylor  (D.  C.)  52  Fed.  323;  The  Rose  Culkin  (D.  C.)  52  Fed.  328. 
*  The  Marguerite  (D.  0.)  87  Fed.  953. 


§    131)  STEAM    AND    SAIL.  243 

avoid  the  sail  vessel,  and  then  go  along  at  her  ordinary  speed 
under  the  assumption  that  the  sail  vessel  will  not  interfere 
with  her.  If  the  steamer's  course  is  such  that  it  does  not 
converge,  she  can  go  along  without  making  any  change.3 

This  rule  that  vessels  may  each  assume  that  the  other  will 
obey  the  law  is  one  of  the  most  important  in  the  law  of  col- 
lision. Were  it  otherwise,  and  were  vessels  required  to  take 
all  sorts  of  measures  to  keep  out  of  the  way  when  they  are 
not  in  each  other's  way,  navigation  would  be  impossible.  It 
is  like  the  land  negligence  rule  that  an  engineer  need  not 
stop  his  train  merely  on  seeing  some  one  on  the  track,  but 
may  assume  that  he  will  have  intelligence  enough  to  get  off. 
Rules  more  rigid  would  break  up  traffic  by  land  or  sea. 
There  is,  however,  one  important  qualification  which  must 
be  borne  in  mind.  It  is  that  a  steamer  must  not  approach 
so  near  a  sailing  vessel,  and  on  such  a  course,  as  to  alarm  a 
man  of  ordinary  skill  and  prudence.  If  the  man  on  the  sail- 
ing vessel  makes  an  improper  maneuver,  he  is  not  responsi- 
ble. It  is  what  is  called  an  "error  in  extremis."  It  is  diffi- 
cult to  lay  down  any  rule  defining  how  close  a  steamer  may 
run  to  a  sail  vessel  without  infringing  this  rule,  as  it  de- 
pends on  the  width  of  the  channel  and  many  other  special 
circumstances.  It  depends  largely  on  the  course  she  is  steer- 
ing. If  that  course  is  parallel,  and  so  far  off  that  she  is 
showing  only  one  side  light  to  the  schooner,  then  she  is  all 
right;  for  any  mariner  of  average  intelligence  knows  that 
in  such  case  the  vessels  will  not  strike  if  each  keeps  his 
course,  and  therefore  has  no  right  to  lose  his  head.  The 
leading  case  on  the  subject  is  THE  LUCILLE.*  In  that 
case  a  steamer  and  schooner  were  approaching  on  conver- 
ging courses  only  half  a  point  apart,  so  that  they  would  have 
come  within  thirty  yards  of  each  other,  and  that  in  Ches- 

«  The  Scotia.  14  Wall.  181,  182,  20  L.  Ed.  822;    The  Free  State, 
W  U.  S.  200,  23  L.  Ed.  299. 
«  15  Wall.  G79,  21  L.  Ed.  247. 


244  STEERING    AND   SAILING    RULES.  (Cll.    12' 

apeake  Bay.  The  court  held  that  this  was  too  close,  and 
condemned  the  steamer.  The  report  does  not  tell  how  the 
lights  showed,  but,  if  their  courses  were  only  half  a  point 
apart,  this  would  make  each  see  both  side  lights  of  the  other, 
and  indicate  that  they  were  coming  right  end  on.6 

Another  interesting  case  on  this  subject  is  that  of  The 
Chatham.8  There  a  schooner  going  down  the  Elizabeth 
river  saw  an  ocean  steamer  approaching,  which  showed  only 
her  red  light  (indicating  a  parallel  course)  until  50  or  75 
yards  off,  when  she  showed  both,  indicating  a  course  straight 
for  the  schooner.  This  alarmed  the  men  on  the  schooner, 
and  they  starboarded,  and  thereupon  the  vessels  struck. 
The  court  held  that  the  steamer,  having  plenty  of  room,  was 
in  fault  for  running  so  close,  and  that  the  act  of  the  schooner, 
even  if  wrong,  was  an  error  in  extremis.7 

The  test  laid  down  in  this  case  is  that  the  proximity  of 
the  steamer,  and  her  course  and  speed,  must  be  such  that  a 
mariner  of  ordinary  firmness  and  competent  knowledge  and 
skill  would  deem  it  necessary  to  alter  his  course  to  make  the 
vessel  pass  in  safety. 

If,  therefore,  the  steamer,  though  running  close,  shows  by 
her  lights  that  her  course  is  not  converging,  she  is  within 
the  law,  and  the  other  vessel  must  assume  that  she  will  stay 
within  the  law  and  navigate  accordingly.8 

»  The  Fannie,  11  Wall.  238,  20  L.  Ed.  114. 
•  3  C.  C.  A.  161,  52  Fed.  396. 

T  The  E.  Luckenbach,  35  C.  C.  A.  628,  93  Fed.  841. 
«  The  Gate  City  (D.  O.)  90  Fed.  314.    See,  also,  Merchants'  &  Min- 
ers' Transp.  Co.  v.  Hopkins  (0.  C.  A.)  108  Fed.  890. 


§    132)  PRIVILEGED    VESSELS.  245 

PRIVILEGED  VESSELS. 

132.  A  vessel  having  the  right  of  way  must  keep 
her  course  and  spesd,  and  the  other  vessel 
may  assume  that  she  "will  do  so. 

By  article  21,  when  by  any  of  these  rules  one  of  two  ves- 
sels is  to  keep  out  of  the  way,  the  other  must  keep  her  course 
and  speed.  This  renders  it  obligatory  on  the  vessel  which 
has  the  right  of  way  to  pursue  her  course  at  the  speed  which 
she  had  been  keeping  up  previously.  She  must  rely  on  the 
other  vessel  to  avoid  the  collision,  and  not  embarrass  her 
by  any  maneuver.  All  she  need  do  is  to  do  nothing.  Then 
the  other  vessel  knows  what  to  expect,  and  navigates  ac- 
cordingly. 

This  rule  applies  to  all  the  other  steering  and  sailing 
rules.  Under  it,  when  the  sail  vessel  running  free  keeps  out 
of  the  way,  the  closehauled  vessel  keeps  her  course.  Be- 
tween two  crossing  steamers,  when  the  one  on  the  left  keeps 
out  of  the  way,  the  other  keeps  her  course.  Between  a 
steamer  and  a  sail  vessel,  when  the  steamer  keeps  out  of  the 
way,  the  sail  vessel  keeps  its  course. 

The  principle  is  the  same  in  all  these  different  contingen- 
cies.    It  may  be  illustrated  by  one  or  two  decisions. 

In  THE  BRITANNIA,1  which  was  a  collision  in  New 
York  harbor,  the  steamer  Beaconsfield  had  the  right  of  way 
over  the  Britannia,  under  the  crossing  rule.  The  Brittan- 
nia  failed  to  keep  out  of  the  way,  and  thereupon  the  Bea- 
consfield stopped  and  reversed.  The  supreme  court  held 
that  she  should  have  kept  her  course,  and  was  in  fault  for 
stopping  and  reversing.3 

In  THE  BREAKWATER,3  which  also  was  a  crossing 

§  132.     i  153  U.  S.  130,  14  Sup.  Ct.  795,  38  L.  Ed.  060. 
z'The  Now  York,  175  U.  S.  187,  20  Sup.  Ct.  67,  44  L.  Ed.  126;   The 
Mexico,  28  C.  C.  A.  472,  84  Fed.  504. 

s  155  U.  S.  252,  15  Sup.  Ct.  90.  39  L.  Ed.  139. 


24G  STEERING    AND    SAILING    RULES.  (Ch.    12* 

case,  the  privileged  vessel  did  keep  on,  and  the  court  held 
that  she  did  right. 

In  collisions  between  steam  and  sail  vessels  the  steamer's 
defense  is  almost  invariably  that  the  sail  vessel  changed  her 
course.4 

The  corresponding  Mississippi  Valley  Rule  is  rule  23 
(Rev.  St.  §  4233),  which  says  that  the  privileged  vessel  must 
keep  her  course,  and  says  nothing  as  to  speed.  It  is  likely, 
however,  that  the  courts  will  hold  it  to  mean  substantially 
what  the  others  mean.  In  fact,  under  the  strong  intimation 
of  the  supreme  court  in  THE  BRITANNIA,  supra,  it  cer- 
tainly means  that  she  must  keep  some  speed,  even  if  it  does 
not  mean  that  she  must  keep  her  previous  speed.6 

CROSSING  AHEAD. 

133.  The  burdened  vessel  must  avoid  crossing  ahead 
of  the  other,  if  practicable. 

Rule  22  requires  every  vessel  which  is  directed  to  keep 
out  of  the  way  to  avoid  crossing  ahead,  if  circumstances 
admit.  This  was  long  a  practice  of  seamen,  "Never  cross 
the  bow  when  you  can  go  astern,"  but  was  for  the  first  time 
made  a  rule  in  the  rules  of  1890.  The  Inland  Rules  have 
the  same  provision,  but  not  the  Lake  Rules  or  Mississippi 
Valley  Rules. 

*  The  Adriatic,  107  U.  S.  512,  2  Sup.  Ct.  355,  27  L.  Ed.  497;    The 
Marguerite  (D.  0.)  87  Fed.  953;   The  Gate  City  (D.  C.)  90  Fed.  314. 
e  The  Delaware,  161  U.  S.  459,  16  Sup.  Ct.  516,  40  L.  Ed.  771. 


§    134)  THE    STOP    AND    BACK    RULE.  247 


THE  STOP  AND  BACK  RULE. 

134.  The  burdened  steamer  must  slacken,  stop,  or 
reverse,  if  necessary,  to  avoid  collision. 

Article  23  provides  that  every  steam  vessel  which  is  di- 
rected by  those  rules  to  keep  out  of  the  way  of  another 
vessel  shall,  on  approaching  her,  if  necessary,  slacken  her 
speed,  or  stop   or  reverse. 

This  rule  is  radically  changed  from  its  old  form.  Until 
the  revision  of  1890,  it  required  every  steam  vessel,  when 
approaching  another  vessel  so  as  to  involve  risk  of  collision, 
whether  the  other  had  the  right  of  way  or  not,  to  resort  to 
these  maneuvers.  The  courts,  however,  had  settled  that 
this  was  not  necessary  as  long  as  the  vessels  were  moving 
on  such  courses  that,  if  each  one  did  his  duty,  as  could  be  as- 
sumed by  each,  no  collision  would  happen.  These  authori- 
ties have  been  cited  in  another  connection.  The  present 
rules  require  this  maneuver  only  of  the  burdened  vessel, 
and  require  the  privileged  vessel  not  only  to  keep  her 
course,  but  her  speed  as  well. 

The  Mississippi  Valley  Rules  still  have  the  rule  in  its 
old  form,  applying  to  all  steamers,  and  not  simply  those  re- 
quired to  keep  out  of  the  way.  This  great  change  in  the 
rule  renders  it  necessary  to  be  circumspect  in  citing  cases 
arising  before  the  change,  as  many  vessels  might  have  been 
obliged  to  stop  and  back  then  which  would  not  be  required 
to  do  so  now.  A  privileged  vessel,  which  stops  and  backs 
now,  unless  at  the  last  moment  as  a  desperate  effort  to 
avert  certain  collision,  would  commit  a  fault,  instead  of 
obeying  the  law.1 

Under  article  28  of  the  International  Rules  and  Inland 
Rules,  the  signal  of  three  short  blasts  is  required  to  be  given 
as  a  notification  of  this  action.     They  mean,  "My  engines 

§  134.     1  The  Mary  Powell,  34  C.  C.  A.  421.  92  Fed.  40S. 


218  STEERING    AND    SAILING    RULES.  (Ch.    12* 

are  at  full  speed  astern."     In  the  other  rules  three  blasts  do 
not  necessarily  mean  this.2 

OVERTAKING  VESSELS. 

135.  The  overtaking  steamer  must  keep  out  of  the 
way. 

Article  24  provides  that,  notwithstanding  anything  con- 
tained in  these  rules,  any  vessel  overtaking  any  other  vessel 
shall  keep  out  of  the  way  of  the  overtaken  vessel. 

Under  the  crossing  rule,  the  true  test  between  an  over- 
taking and  a  crossing  vessel  has  been  shown.  This  rule 
adopts  that  test,  and  makes  any  vessel  more  than  two  points 
abaft  the  beam  an  overtaking  vessel,  and  solves  all  cases  of 
doubt  by  treating  them  as  overtaking  vessels. 

The  only  signals  prescribed  by  the  International  Rules 
for  this  case  are  the  general  ones  contained  in  article  28, 
one  blast  meaning  that  the  vessel  is  directing  her  course  to 
starboard,  and  two  that  she  is  directing  her  course  to  port. 
But  the  Inland  Rules  in  article  18,  rule  8,  prescribe  special 
rules  for  the  case.  They  require  the  last  vessel  to  blow  one 
blast  if  she  wishes  to  pass  to  the  right,  and  the  forward  one 
to  answer  it ;  two  if  she  wishes  to  pass  to  the  left,  and  the 
forward  one  to  answer  it.  If  the  pilot  of  the  front  steamer 
thinks  that  they  cannot  safely  pass,  he  answers  the  signal 
of  the  other  steamer  by  several  short  blasts,  whereupon  the 
second  steamer  must  wait  until  the  forward  steamer  gives 
the  assenting  signal ;  and  the  forward  steamer  must  not 
crowd  upon  the  overtaking  one.  The  Lake  Rules  and  Mis- 
sissippi Valley  Rules  have  substantially  the  same  provisions 
on  the  subject.    The  overtaking  vessel  must  pass  at  a  suf- 

*  As  to  the  application  of  this  rule,  see  The  Oporto  [1897]  Prob. 
249;  The  Victory,  168  U.  S.  410,  18  Sup.  Ct.  149,  42  L.  Ed.  519;  The 
New  York,  175  U.  S.  187,  20  Sup.  Ct.  67,  44  L.  Ed.  126;  The  Mourne 
[1901]  Prob.  68. 


§    135)  OVERTAKING    VESSELS.  249 

ficient  distance  to  avoid  danger  of  suction.  She  is  in  fault 
if  collision  is  caused  by  her  running  too  close.1 

While  the  overtaken  steamer  must  keep  her  general 
course,  and  the  second  steamer  may  so  assume,  yet  if  the 
first  has  exchanged  signals  with  another  boat  which  she  is 
meeting,  and  is  changing  her  course  to  conform  thereto,  the 
steamer  overtaking  her  must  take  note  of  this  change,  and 
regulate  her  navigation  accordingly.2 

The  overtaking  steamer  may  assume  that  the  first  steamer 
will  navigate  according  to  the  rule.3 

The  overtaking  steamer,  as  she  is  passing,  must  not  try 
to  cut  across  in  front  too  quickly.  If  she  does,  and  ren- 
ders collision  inevitable,  the  other  should  back;  not  by 
virtue  of  the  stop  and  back  rule,  as  that  does  not  apply  to 
her,  being  the  privileged  vessel,  but  by  virtue  of  the  gen- 
eral prudential  rule,*  or  the  precaution  rule.8 

§  135.  i  The  City  of  Brockton  (C.  0.)  42  Fed.  928;  The  Ohio,  33 
O.  C.  A.  667,  91  Fed.  547. 

2  The  Whitewash  (D.  C.)  64  Fed.  893. 

»  Long  Island  R.  Co.  v.  Killien,  14  C.  C.  A.  418,  67  Fed.  365. 

*  Int.  art.  27. 

•  Int.  art  29;  The  Wlllkommen  (D.  C.)  103  Fed.  699. 


250  RULES   AS    TO    NARROW    CHANNELS,  ETC.  (Cb.   1< 


CHAPTER  XIII. 

RULES  AS  TO  NARROW  CHANNELS,  SPECIAL  CIRCUMSTAN- 
CES, AND  GENERAL  PRECAUTIONS. 

136.  The  Narrow  Channel  Rule. 

137.  The  General  Prudential  Rule,  or  Special  Circumstance  Rule. 

138.  Sound  Signals. 

139.  The  General  Precaution  Rule. 

140.  Lookouts. 

141.  Anchored  Vessels. 

142.  Wrecks. 

143.  The  Stand-by  Act 


THE  NARROW  CHANNEL  RULE. 

136.  In  narrow  channels  each  steamer  must  keep  to 
the  right-hand  side. 

Article  25  provides  that  in  narrow  channels  every  steam 
vessel  shall,  when  it  is  safe  and  practicable,  keep  to  that  side 
of  the  fairway  or  mid-channel  which  lies  on  the  starboard 
side  of  such  vessel. 

This  is  really  a  branch  of  the  port-helm  rule.  The  latter 
rule  applies  when  the  vessels  are  meeting  end  on,  no  mat- 
ter whether  they  are  in  a  harbor  or  a  narrow  channel,  no 
matter  whether  they  are  following  a  channel  or  crossing  it. 
The  starboard-hand  rule  emphasizes  this  duty  as  to  narrow 
channels.  It  means  that  each  must  keep  along  its  own  right- 
hand  side,  no  matter  how  the  relative  bearings  may  be  from 
sinuosities  or  other  causes.1 

This  rule  was  only  added  to  the  inland  rules  by  the  recent 
act  of  June  7,  1897,  though  it  had  been  in  the  International 
Rules  since  the  revision  of  1885.     The  courts,  however,  are 

§  136.  1  THE  VICTORY,  168  U.  S.  410,  18  Sup.  Ct  149,  42  L.  Ed. 
410. 


§    136)    '  THE    NARROW    CHANNEL    RULE.  251 

rigid  in  enforcing  it.  As  it  has  been  brought  into  the  In- 
land Rules  so  recently,  a  few  illustrations  might  prove  prof- 
itable. 

The  Spearman  2  arose  on  the  Danube,  under  a  local  rule 
substantially  similar.  The  descending  vessel  took  the  left 
bank,  and  was  held  in  fault  for  a  collision  with  an  ascending 
vessel,  though  the  absence  of  lights  on  the  latter  might  have 
contributed  to  the  accident. 

The  Pekin  8  was  a  collision  case  in  the  river  Whang  Poo, 
in  China,  at  a  point  where  there  was  a  sharp  bend.  The 
Normandie,  in  descending,  kept  to  the  starboard  side,  and 
the  Pekin  was  ascending.  This  threw  the  Pekin  on  the  Nor- 
mandie's  starboard  bow  on  account  of  the  bend,  and  she 
therefore  claimed  that  it  was  a  crossing  case,  and  that  under 
rule  19  she  had  the  right  of  way.  The  house  of  lords,  how- 
ever, held  that  the  course  must  be  judged,  not  by  the  acci- 
dental bearing  at  a  bend,  but  by  the  general  channel  course, 
and  that  the  Pekin  was  to  blame  for  cutting  across  to  the 
Normandie's  side. 

Another  interesting  English  case  in  which  the  rule  was 
applied  was  The  Oporto.4 

In  The  Spiegel,6  Judge  Coxe  applied  the  rule  to  a  col- 
lision on  the  Erie  Canal  at  night,  placing  the  responsibility 
on  a  boat  which  was  on  the  wrong  side. 

The  rule  applies  in  fogs  as  well  as  in  clear  weather.' 

What  Constitutes  a  JSlarrow  Channel. 

It  is  not  an  easy  matter  to  define  what  constitutes  a  nar- 
row channel.  In  the  leading  case  of  THE  RHONDDA,7 
the  house  of  lords  held  that  the  Straits  of  Messina  were  in- 

a  10  App.  Cas.  276. 
8  [1897]  App.  Cas.  532. 
4  [1897]  Prob.  249. 
b  (D.  C.)  84  Fed.  1002. 

e'lhe  Yarmouth  (D.  C.)  100  Fed.  667;   The  Newport  News,  44  O. 
C.  A.  541,  105  Fed.  3S9. 
1  8  App.  Cas.  549. 


252         RULES  AS  TO  NARROW  CHANNELS,  ETC.     -(Ch.  18 

eluded  in  the  term,  and  in  The  Leverington  8  it  was  held 
that  the  Cardiff  Drain,  where  it  joins  the  entrance  channel 
to  the  Roath  Basin,  came  within  the  designation. 

In  the  case  of  Occidental  &  O.  S.  S.  Co.  v.  Smith,9  it  was 
held  to  include  the  entrance  to  San  Francisco  harbor.  So 
with  Providence  river.10 

As  the  only  object  of  the  rule  is  to  avoid  collision,  the 
common  sense  of  the  matter  would  seem  to  be  that,  as  it 
does  not  apply  to  all  channels,  but  only  to  narrow  channels,  a 
channel  is  not  narrow,  in  the  sense  of  the  term,  unless  ves- 
sels approaching  each  other  in  it  are  compelled  to  approach 
on  such  lines  as  would  involve  "risk  of  collision"  in  the 
sense  of  the  navigation  rules.  If  it  is  wide  enough  to  per- 
mit two  steamers  to  pass  at  a  safe  distance  without  the  ne- 
cessity of  exchanging  signals,  the  rule  would  not  apply ;  and 
it  would  be  idle  to  require  two  steamers  to  cross  to  the  other 
side.  But  if  it  is  so  narrow  by  nature,  or  so  narrowed  by 
anchored  vessels  or  other  causes,  as  to  bring  approaching 
steamers  on  lines  in  dangerous  proximity,  and  require  inter- 
change of  signals,  then  the  rule  would  apply. 

It  hardly  seems  to  apply  to  harbors.  Steamers  moving 
from  one  wharf  to  another  further  down  on  the  same  side 
can  scarcely  be  expected  to  cross  the  harbor  and  then  cross 
back. 

It  will  be  observed  that  this  rule  is  very  cautiously  word- 
ed. It  only  applies  when  it  is  "safe  and  practicable,"  and  it 
only  requires  the  "ship  to  keep  to  the  right  of  the  fairway 
or  mid-channel."  This  means  the  water  available  for  nav- 
igation at  the  time.  For  instance,  if  half  of  a  narrow  chan- 
nel was  obstructed  by  anchored  vessels,  the  "fairway  or  mid- 
channel"  would  mean  the  part  still  unobstructed,  and  re- 
quire the  vessel  to  keep  on  her  half  of  the  channel  still  re- 

•  11  Prob.  Div.  117. 

•  20  C.  C.  A.  419,  74  Fed.  261. 

io  The  Berkshire,  21  C.  C.  A.  169,  74  Fed.  906. 


§  137)        THE  GENERAL  PRUDENTIAL  RULE.  253 

maining,  even  though  that  was  not  on  the  starboard  side  of 
the  ordinary  navigable  channel.  It  would  not  be  "safe  and 
practicable"  to  do  otherwise.11 

Neither  the  Lake  Rules  nor  the  Mississippi  Valley  Rules 
contain  this  provision,  but  they  have  their  own  rules  for  nar- 
row channels,  the  substance  of  which  is  that  the  boat  with 
the  current  has  the  right  of  way.  In  the  Lake  Rules  she 
must  give  the  first  signal,  but  in  the  Mississippi  Valley  Rules 
the  ascending  steamer  does  so. 

But  under  the  Mississippi  Valley  Rules  the  courts  seem 
to  require  each  boat  to  keep  to  the  right  side  as  a  matter  of 
careful  navigation.1* 

THE  GENERAL    PRUDENTIAL    RULE,    OR    SPECIAL 
CIRCUMSTANCE  RULE. 

137.  The  general  prudential  rule,  or  special  circum- 
stance rule,  allows  departure  from  the  other 
rules,  but  only  in  extreme  cases. 

Article  27  provides  that  in  obeying  and  construing  these 
rules  due  regard  shall  be  had  to  all  dangers  of  navigation 
and  collision,  and  to  any  special  circumstances  which  may 
render  a  departure  from  the  above  necessary  in  order  to 
avoid  immediate  clanger. 

In  the  multitude  of  possible  situations  in  which  vessels 
may  find  themselves  in  relation  to  each  other,  there  are  nec- 
essarily occasional  cases  in  which  obstinate  adherence  to  the 
rule  would  cause  collision,  when  disregard  of  it  might  pre- 
vent it.  This  rule  is  made  for  such  cases.  These  excep- 
tional circumstances  usually  arise  at  the  last  moment,  so 

11  On  the  meaning  of  these  words,  see  Smith  v.  Voss,  2  Hurl.  &  N. 
97;  THE  RHONDDA,  8  App.  Oas.  549;  The  Clydach,  5  Asp.  336; 
The  Leverlngton,  11  Prob.  Div.  117;   The  Oliver  (D.  C.)  22  Fed.  849. 

i2  The  All  it  Dumois,  31  0.  C.  A.  315,  87  Fed.  948,  177  U.  S.  240, 
20  S.  Ct.  595,  44  L.  Ed.  751. 


254  RULES    AS    TO    NARROW    CHANNEIS,  ETC.  (Ch.   1*3 

that  this  rule  has  well  been  designated  the  rule  of  "sauve 
qui  pent."  It  cannot  be  used  to  justify  violations  of  the 
other  rules,  or  to  operate  as  a  repeal  of  them.  The  cer- 
tainty resulting  from  the  enforcement  of  established  rules  is 
too  important  to  be  jeopardized  by  exceptional  cases.  Any 
rule  of  law,  no  matter  how  beneficial  in  its  general  opera- 
tion, may  work  occasional  hardship.  Hence  the  courts  lean 
in  favor  of  applying  the  regular  rules,  and  permit  departure 
from  them  only  in  the  plainest  cases. 

The  principle  which  governs  such  cases  existed  and  was 
applied  long  before  it  was  enacted  in  the  present  rule.  It  is 
well  expressed  by  Dr.  Lushington  in  the  case  of  The  John 
Buddie,1  where  he  said:  "All  rules  are  framed  for  the  ben- 
efit of  ships  navigating  the  seas,  and,  no  doubt,  circumstan- 
ces will  arise  in  which  it  would  be  perfect  folly  to  attempt  to 
carry  into  execution  every  rule,  however  wisely  framed.  It 
is  at  the  same  time  of  the  greatest  possible  importance  to 
adhere  as  closely  as  possible  to  established  rules,  and  never 
to  allow  a  deviation  from  them  unless  the  circumstances 
which  are  alleged  to  have  rendered  such  deviation  necessary 
are  most  distinctly  proved  and  established ;  otherwise  ves- 
sels would  always  be  in  doubt  and  doing  wrong." 

In  The  Khedive,2  two  vessels  were  approaching  each  oth- 
er green  light  to  green  light,  when  suddenly  one  ported, 
thereby  establishing  risk  of  collision.  The  captain  of  the 
other  starboarded,  under  the  belief  that  this  would  bring 
the  vessels  parallel,  and  at  least  ease  the  blow.  He  did  not 
reverse,  as  required  by  rule  23  as  then  worded.  It  was  con- 
tended for  him  that  he  was  justified  under  the  special  cir' 
cumstances,  but  the  house  of  lords  held  that  the  stop  and 
back  rule  governed,  and  that  this  rule  could  not  be  invoked 
to  excuse  noncompliance  with  the  stop  and  back  rule. 

In  the  case  of  The  Benares,3  a  vessel  saw  a  green  light  a 

f  137.     1  5  N.  C.  387.  2  5  App.  Cas.  876. 

3  9  Prob.  Div.   16. 


§  137)        THE  GENERAL  PRUDENTIAL  RULE.  255 

little  on  her  port  bow.  When  they  came  close  together,  she 
saw  the  port  side,  but  no  red  light  where  it  should  have  been. 
She  thereupon  starboarded,  and  went  full  speed  ahead,  in- 
stead of  backing  and  reversing.  The  court  held  that  it  was 
an  exceptional  case,  governed  by  the  general  prudential  rule, 
and  that  she  had  done  right;  and  that  a  departure  is  justi- 
fied when  it  is  "the  one  chance  still  left  of  avoiding  danger 
which  otherwise  was  inevitable."  4 

The  American  courts  have  been  equally  reluctant  to  admit 
exceptions.  In  The  Clara  Davidson,5  the  court  said :  "But 
I  do  not  find  myself  at  liberty  to  ignore  the  inquiry  whether 
a  statutory  rule  of  navigation  was  violated  by  the  schooner. 
Those  rules  are  the  law  of  laws  in  cases  of  collision.  They 
admit  of  no  option  or  choice.  No  navigator  is  at  liberty  to 
set  up  his  discretion  against  them.  If  these  rules  were  sub- 
ject to  the  caprice  or  election  of  masters  and  pilots,  they 
would  be  not  only  useless,  but  worse  than  useless.  These 
rules  are  imperative.  They  yield  to  necessity,  indeed,  but 
only  to  actual  and  obvious  necessity.  It  is  not  stating  the 
principle  too  strongly  to  say  that  nothing  but  imperious 
necessity,  or  some  overpowering  vis  major,  will  excuse  a 
sail  vessel  in  changing  her  course  when  in  the  presence  of  a 
steamer  in  motion ;  that  is,  obeying  the  duty  resting  upon 
it  or  keeping  out  of  the  way.  If  the  statutory  rules  of  nav- 
igation were  only  optionally  binding,  we  should  be  launched 
upon  an  unbounded  sea  of  inquiry  in  every  collision  case, 
without  rudder  or  compass,  and  be  at  the  mercy  of  all  the 
fogs  and  mists  that  would  be  made  to  envelop  the  plainest 
case,  not  only  from  conflicting  evidence  as  to  the  facts,  but 
from  the  hopelessly  conflicting  speculations  and  hypotheses 
of  witnesses  and  experts  as  to  what  ought  to  or  might  have 
been  done  before,  during,  and  after  the  event.  The  statu- 
tory regulations  that  have  been  wisely  and  charitably  de- 

*  See,  also,  The  Mourne  [1901]  Prob.  68. 
«  (D.  C.)  24  Fed.  7G3. 


256         RULES  AS  TO  NAKROW  CHANNELS,  ETC.      (Ch.  13- 

vised  for  the  governance  of  mariners  furnish  an  admirable 
chart  by  which  the  courts  may  disentangle  themselves  from 
conflicting  testimony  and  speculation,  and  arrive  at  just  con- 
clusions in  collision  cases." 

In  THE  BREAKWATER,6  where,  in  a  crossing  case, 
the  privileged  vessel  kept  her  course  and  speed,  and  was  at- 
tacked because  she  did  not  reverse,  the  court  said :  "Where 
rules  of  this  description  are  adopted  for  the  guidance  of  sea- 
men who  are  unlearned  in  the  law,  and  unaccustomed  to 
nice  distinctions,  exceptions  should  be  admitted  with  great 
caution,  and  only  when  imperatively  required  by  the  special 
circumstances  mentioned  in  rule  24,  which  may  exist  in  any 
particular  case,  rendering  a  departure  from  them  necessary 
in  order  to  avoid  immediate  danger.  The  moment  the  ob- 
servance or  nonobservance  of  a  rule  becomes  a  matter  of 
doubt  or  discretion,  there  is  manifest  danger,  for  the  judg- 
ment of  one  pilot  may  lead  him  to  observe  the  rule,  while 
that  of  the  other  may  lead  him  to  disregard  it.  The  theory 
of  the  claimant  that  a  vessel  at  rest  has  no  right  to  start 
from  her  wharf  in  sight  of  an  approaching  vessel,  and  there- 
by impose  upon  the  latter  the  obligation  to  avoid  her,  is 
manifestly  untenable,  and  would  impose  a  wholly  unneces- 
sary burden  upon  the  navigation  of  a  great  port  like  that  of 
New  York.  In  the  particular  case,  too,  the  signals  exchan- 
ged between  the  steamers  indicated  clearly  that  the  Break- 
water accepted  the  situation  and  the  obligation  imposed  up- 
on her  by  the  starboard-hand  rule,  and  was  bound  to  take 
promot  measures  to  discharge  herself  of  such  obligation." 
In  The  Non  Pareille,7  the  court  said :  "There  is  no  such 
thing  as  a  right  of  way  to  run  into  unnecessary  collision. 
The  rules  of  navigation  are  for  the  purpose  of  avoiding  col- 
lision, not  to  justify  either  vessel  incurring  a  collision  un- 
necessarily.    The  supreme  duty  is  to  keep  out  of  collision. 

e  155  U.  S.  252,  15  Sup.  Ct.  99.  39  L.  Ed.  139. 
f  (D.  C.)  33  Fed.  524. 


§    139)  THE    GENERAL    PRECAUTION    RULE.  257 

The  duties  of  each  vessel  are  defined  with  reference  to  that 
object,  and,  in  the  presence  of  immediate  danger,  both,  un- 
der rule  24,  are  bound  to  give  way,  and  to  depart  from  the 
usual  rule,  when  adherence  to  that  rule  would  inevitably 
bring  on  collision,  which  a  departure  from  the  rules  would 
plainly  avoid." 

It  is  plain,  therefore,  that  he  who  disregards  the  regular 
rules,  and  appeals  to  this  one,  shoulders  a  heavy  burden. 
He  is  like  the  whist  player  who  fails  to  return  his  partner's 
trump  lead.  He  may  be  able  to  justify  it,  but  explanations 
are  certainly  in  order.8 

SOUND  SIGNALS. 

138.  A  steamer   must  indicate  to  other  vessels  in 

sight  the  course  taken   by   her,  by   giving 
sound  signals. 

Article  28  prescribes  these,  but  they  have  been  explained 
in  a  previous  connection,  and  need  not  be  repeated. 

THE  GENERAL  PRECAUTION  RULE. 

139.  Proper  precautions,  other  than  those  required 

by  the  rules,  are  not  to  be  neglected. 

Article  29  provides  that  nothing  in  these  rules  shall  ex- 
onerate any  vessel,  or  the  owner  or  master  or  crew  thereof, 
from  the  consequences  of  any  neglect  to  carry  lights  or  sig- 
nals, or  of  any  neglect  to  keep  a  proper  lookout,  or  of  the 
neglect  of  any  precaution  which  may  be  required  by  the 
ordinary  practice  of  seamen  or  by  the  special  circumstances 
of  the  case. 

This  rule  is  intended  as  a  supplement  for  the  other  rules, 

s  The  Albert  Dtimois,  31  C.  C.  A.  315,  87  Fed.  948,  177  U.  S.  240, 
20  Sup.  Ct.  595,   1 1  L  EH.  751. 
HUQHES.AD.— 17 


25S         RULES  AS  TO  NARROW  CHANNELS,  ETC.     (Ch.  13 

not  as  a  substitute  for  them.     It  covers  many  cases  not  ex- 
pressly included  in  the  other  rules. 

SAME— LOOKOUTS. 

140.  The   law  is   rigid  in   requiring    a    competent 
lookout,  charged  with  that  sole  duty. 

Perhaps  the  most  common  precaution  is  the  necessity  of 
a  lookout.  Both  the  English  and  American  courts  have  said 
as  emphatically  as  language  can  express  it  that  vessels  must 
have  a  competent  lookout  stationed  where  he  can  best  see, 
and  that  he  must  be  detailed  to  that  sole  duty.  Neither  the 
master  nor  helmsman,  if  engaged  in  their  regular  duties,  can 
act  as  such,  for  they  have  troubles  enough  of  their  own.  A 
good  English  illustration  is  The  Glannibanta.1 

In  Clyde  Nav.  Co.  v.  Barclay,2  the  steamer,  which  was  on 
her  trial  trip,  was  in  charge  of  a  pilot,  but  an  officer  also 
was  on  the  bridge,  and  there  was  another  man,  not  properly 
qualified,  on  the  lookout.  The  house  of  lords  held  this  suf- 
ficient, and  that  the  bridge  was  the  proper  place  for  the  look- 
out under  the  circumstances. 

The  decisions  of  the  American  courts  have  been  numer- 
ous and  emphatic.  In  the  case  of  THE  MANHASSET,3 
the  leading  cases  on  the  subject  were  reviewed,  and  the  dif- 
ference between  the  duties  of  the  master  and  lookout  clearly 
put.  In  that  case  a  ferryboat  crossing  Norfolk  harbor  on 
a  stormy  night  was  condemned  for  having  no  one  on  duty 
except  the  master  at  the  wheel. 

In  fact,  circumstances  may  arise  where  more  than  one 
lookout  is  necessary.  Ocean  steamers  have  been  held  in 
fault  for  not  having  two,  if  it  appears  that  objects  were  not 
seen  as  soon  as  possible.* 

S  140.     H  Prob.  Div.  283. 

*  1  App.  Cas.  790. 

«  (D.  C.)  34  Fed.  408. 

4  THE  BELGENLAND,  114  U.  S.  355.  5  Sup.  Ct.  860.  29  L.  Ed.  152. 


§  140)        THE  GENERAL  PRECAUTION  RULE.  259 

Under  some  circumstances — as  where  a  vessel  is  back- 
ing, or  another  vessel  is  overtaking — there  should  be  a  look- 
out astern  as  well  as  forward.5 

This  rule  as  to  lookouts  must  not  be  carried  to  a  reductio 
ad  absurdum.  If  the  approaching  vessels  see  each  other  an 
ample  distance  apart  to  take  all  proper  steps,  then  the  ob- 
ject of  having  a  lookout  is  accomplished,  and  the  absence 
of  a  man  specially  detailed  and  stationed  is  a  fault  not  con- 
tributory, and  therefore  immaterial.8 

The  proper  station  for  a  lookout  is  where  he  can  have  an 
unobstructed  view.  It  must  be  a  place  unobstructed  by  the 
sails,  and  is  usually  on  the  forecastle,  or  near  the  eyes  of 
the  ship.7 

In  the  case  of  steamers,  although  courts  discourage  the 
practice  of  having  the  lookout  in  the  pilot  house,  his  proper 
location  is  a  question  of  fact,  not  of  law.  The  dissenting 
opinion  of  Chief  Justice  Taney  in  the  case  of  Haney  v.  Bal- 
timore Steam-Packet  Co.,8  well  puts  the  doctrine  as  follows : 
"It  has  been  argued  that  the  lookout  ought  to  have  been  in 
the  bow,  and  some  passages  in  the  opinions  of  this  court  in 
former  cases  are  relied  on  to  support  this  objection.  But 
the  language  used  by  the  court  may  always  be  construed 
with  reference  to  the  facts  in  the  particular  case  of  which 
they  are  speaking,  and  the  character  and  description  of  the 
vessel.  What  is  the  most  suitable  place  for  a  lookout  is 
obviously  a  question  of  fact,  depending  upon  the  construc- 
tion and  rig  of  the  vessel,  the  navigation  in  which  she  is  en- 
gaged, the  climate  and  weather  to  which  she  is  exposed, 

5  The  Nevada,  100  U.  S.  154,  1  Sup.  Ct.  234,  27  L.  Ed.  149;  The 
Sarmatian  (C.  C.)  2  Fed.  911. 

«  The  Farracrut,  10  Wall.  338,  19  L.  Ed.  940;  The  Blue  Jacket,  144 
r.  S  371,  L2  Sup.  Ct.  711,  3G  L.  Ed.  4G9;  THE  HEKCUEES,  26  O.  C. 
A.  301.  80  Fed.  998. 

t  The  Java,  14  Blatchf,  524,  Fed.  Cas.  No.  7,233;  The  John  Prid- 
geon,  Jr.  <I>.  C.)  38  Fed.  261 ;   The  Bendo  (D.  C.)  44  Fed.  439.  444. 

«23  How.  292,  10  L.  Ed.  M2. 


260         RULES  A8  TO  NARROW  CHANNELS,  ETC.     (Ch.  13 

and  the  hazards  she  is  likely  to  encounter;  and  must,  like 
every  other  question  of  fact,  be  determined  by  the  court 
upon  the  testimony  of  witnesses, — that  is,  upon  the  testi- 
mony of  nautical  men  of  experience  and  judgment.  It  can- 
not, in  the  nature  of  things,  be  judicially  known  to  the  court 
as  a  matter  of  law." 

The  courts  have  ruled  that  this  doctrine  applies  to  all 
steamers,  large  and  small,  both  as  to  the  location  of  the 
lookout  and  the  necessity  of  having  a  man  independent 
of  the  master  and  wheelsman.  In  the  case  of  tugs  it  is  a 
rule  more  honored  in  the  breach  than  in  the  observance. 
There  is  some  excuse  for  it,  as  the  pilot  house  of  the  tug  is 
so  far  forward  and  so  elevated  as  usually  to  afford  the  best 
view.  And,  in  addition,  the  stem  of  a  tug  being  low  down 
in  the  water,  unlike  the  lofty  stems  of  large  vessels,  is  so 
wet  a  place  in  a  heavy  sea  that  a  lookout  could  do  no  good. 
Hence  the  courts,  though  insisting  on  their  rule  even  as  to 
tugs,  especially  in  harbor  work,  and  requiring  strong  proof 
to  satisfy  them  that  the  want  of  a  special  lookout  did  no 
harm,  are  yet  more  lenient  in  such  cages  than  in  cases  of 
large  steamers.  The  instances  in  the  books  where  tugs  have 
been  condemned  in  this  respect  were  cases  where  the  acci- 
dent was  directly  traceable  to  such  neglect.8 

»  City  of  Philadelphia  v.  Gavagnin,  10  C.  O.  A.  552,  62  Fed.  617; 
The  George  W.  Childs  (D.  C.)  67  Fed.  271.  As  instances  where  tugs 
were  held  blameless  on  this  score,  see  The  Caro  (D.  C.)  23  Fed.  734; 
The  Bendo  (D.  C.)  44  Fed.  439;  The  R.  R.  Kirkland  (D.  C.)  48  Fed. 
760;  The  Blue  Jacket,  144  U.  S.  371,  12  Sup.  Ot.  711,  36  L.  Ed.  469; 
THE  HERCULES,  26  0.  C.  A.  301,  SO  Fed.  998. 


§  141 )  THE  GENERAL  PRECAUTION  RULE.  261 

SAME— ANCHORED  VESSELS. 

141.  When  a  moving  vessel  runs  into  a  vessel  an- 
chored in  a  lawful  place,  -with  proper  lights 
showing,  or  a  bell  ringing,  if  such  lights  or 
bell  are  required  by  rule,  and  with  a  proper 
anc'ior  watch,  the  presumptions  are  all 
against  the  moving  vessel,  and  she  is  pre- 
sumed to  be  in  fault,  unless  she  exonerates 
herself. 

The  law  in  relation  to  collision  with  anchored  vessels  can 
best  be  classified  under  this  twenty-ninth  rule.  The  pre- 
sumptions against  the  moving  vessel  in  such  a  case  are  very 
strong.  Practically  her  only  defense  is  vis  major,  or  inevit- 
able accident.1 

If,  however,  there  is  any  maneuver  by  which  an  anchored 
vessel,  on  seeing  a  collision  imminent,  can  avoid  or  lighten 
it,  she  is  required  to  do  so.  Sometimes  the  courts  have  held 
anchored  vessels  in  such  case  required  to  sheer,  or  to  let  out 
additional  chain,  if  they  can  do  so.2 

Anchoring  in  Channels. 

How  far  it  is  negligent  in  an  anchored  vessel  to  anchor  in 
a  channel  of  navigation  is  a  question  of  fact  depending  up- 
on special  circumstances.  In  the  neighborhood  of  many 
ports  there  are  designated  anchorage  grounds,  and  a  vessel 
anchored  in  these  grounds  designated  by  proper  authority 
is  not  at  fault  on  the  mere  score  of  anchorage.  In  other 
places  vessels  have  grounds  designated  not  by  any  special 
authority,  but  by  general  usage,  and  in  that  case,  if  the  ves- 

§  141.  i  The  Le  Lion  (D.  0.)  84  Fed.  1011;  The  Minnie  (D.  C.)  87 
Fed.  780;    10  <'.  C  a.  312,  LOO  Fed.  liiS. 

2  The  Sapphire,  11  Wall.  IC4,  20  L.  Ed.  127;  The  Clara,  102  U.  S. 
200,  26  L.  Ed.  145;  The  Oliver  (D.  C.)  22  Fed.  848;  The  Clarita.  23 
Wall.  1,  23  L.  Ed.  140. 


262  RULES  AS  TO  NARROW  CHANNELS,  ETC.     (Ch.  13 

sel  anchors  where  it  has  been  customary  to  anchor,  and  an- 
chors in  such  a  way  that  ample  room  is  left  for  the  passage 
of  vessels,  whether  by  day  or  night,  allowing  all  necessary 
margin  for  the  uncertainties  of  wind  or  current,  it  would  not 
be  negligent  so  to  anchor.  But,  if  a  vessel  anchors  in  a 
channel  of  navigation  in  such  a  way  as  to  plant  herself  in  the 
necessary  path  of  passing  vessels,  so  that  moving  vessels  in 
such  case  come  into  collision  with  her,  she  is  liable  at  least 
to  be  held  partly  in  fault  for  the  resulting  collision ;  and,  if 
it  was  a  matter  of  nice  calculation  whether  the  moving  ves- 
sel could  pass  or  not,  she  would  be  held  solely  in  fault.  A 
few  illustrations  of  the  method  in  which  these  general  prin- 
ciples have  been  applied  will  serve  to  make  it  plainer. 

In  the  case  of  The  Worthington,3  a  vessel  anchored  in  the 
St.  Clair  river  where  it  was  customary  to  anchor,  but  left 
ample  room  for  the  passage  of  moving  vessels.  It  was  held 
that  she  was  not  to  blame  on  the  mere  score  of  her  anchor- 
age, but  that  the  situation  imposed  upon  her  increased  vigi- 
lance in  reference  to  keeping  an  anchor  watch  and  proper 
light. 

The  cases  of  The  Oscar  Townsend  4  and  The  Ogemaw  5 
were  also  cases  of  vessels  anchored  in  the  St.  Clair  river,  in 
which  the  anchored  vessel  was  held  blameless. 

On  the  other  hand,  in  The  Passaic,6  a  vessel  at  anchor  in 
the  St.  Clair  river  was  held  at  fault,  not  so  much  for  the  mere 
fact  of  anchoring  there  as  for  anchoring  herself  in  such  a 
manner  that  she  could  not  move  or  sheer  either  way,  the 
other  boat  also  being  held  in  fault  for  running  into  her. 

In  The  S.  Shaw,7  a  vessel  anchored  in  the  Delaware  within 
the  range  of  the  lights,  which  was  forbidden  by  the  local 
statute.     She  was  held  at  fault. 

So,  in  The  La  Bourgogne,8  a  steamer  was  held  in  fault  for 

»  (D.  C.)  19  Fed.  836.  «  (D.  C.)  76  Fed.  460. 

*  (D.  C.)  17  Fed.  93.  »  (D.  C.)  6  Fed.  93. 

«  (D.  0.)  32  Fed.  919.  •  30  C.  C.  A.  203,  86  Fed.  475. 


§  141)         THE  GENERAL  PRECAUTION  RULE.  263 

anchoring  in  New  York  harbor,  in  a  fog,  outside  the  pre- 
scribed anchorage  grounds. 

In  the  recent  case  of  Ross  v.  Merchants'  &  Miners' 
Transp.  Co.,9  certain  barges  were  anchored  in  such  a  way  as 
to  obstruct  the  channel,  and  there  was  strong  evidence  also 
that  they  did  not  have  up  proper  lights.  The  court  decided 
that  they  were  to  blame  for  adopting  such  an  anchorage. 

This  doctrine  of  obstructing  narrow  channels  has  the  mer- 
it of  great  antiquity.  Article  26  of  the  Laws  of  Wisbuy  pro- 
vides :  "If  a  ship  riding  at  anchor  in  a  harbour,  is  struck  by 
another  ship  which  runs  against  her,  driven  by  the  wind  or 
current,  and  the  ship  so  struck  receives  damage,  either  in 
her  hull  or  cargo ;  the  two  ships  shall  jointly  stand  to  the 
loss.  But  if  the  ship  that  struck  against  the  other  might 
have  avoided  it,  if  it  was  done  by  the  master  on  purpose,  or 
by  his  fault,  he  alone  shall  make  satisfaction.  The  reason 
is,  that  some  masters  who  have  old  crazy  ships,  may  will- 
ingly lie  in  other  ships'  way,  that  they  may  be  damnify 'd  or 
sunk,  and  so  have  more  than  they  were  worth  for  them.  On 
which  account  this  law  provides,  that  the  damage  shall  be 
divided,  and  paid  equally  by  the  two  ships,  to  oblige  both  to 
take  care,  and  keep  clear  of  such  accidents  as  much  as  they 
can." 

These  decisions  were  all  rendered  independent  of  statu- 
tory provision. 

In  the  appropriation  act  of  March  3,  1899,  congress  made 
elaborate  provisions  for  the  protection  of  navigable  chan- 
nels, not  only  against  throwing  obstructions  overboard,  but 
against  illegal  anchorage.  .Sections  15  and  16  of  that  act  10 
provided  that  it  should  not  be  lawful  to  tie  up  or  anchor 
vessels  or  other  craft  in  navigable  channels  in  such  a  manner 
as  to  prevent  or  obstruct  the  passage  of  other  vessels  or 
craft,  and  imposed  a  penalty  not  only  upon  the  navigator 
who  put  them  there,  but  upon  the  vessel  itself. 

•  43  C.  C.  A.  "j.'is,  104  Fed.  302.  1030  St;it.  1152,  11.r>3. 


264  RULES    AS    TO    NARROW    CHANNELS,  ETC.  (Ch.    lo" 

How  far  this  statute  changes  the  previously  existing  law 
has  not  yet  been  decided.  In  one  sense  of  the  word,  any 
vessel  that  anchors  in  a  navigable  channel  obstructs  naviga- 
tion to  some  extent ;  and  the  act,  if  literally  construed,  would 
forbid  any  anchorage  in  a  navigable  channel.  Even  local 
regulations  of  harbor  boards  or  other  such  officers  could  not 
justify  it,  for  an  act  of  congress  supersedes  all  such  legisla- 
tion on  the  subject,  and  such  officers  have  no  more  authority 
to  violate  it  than  navigators.  In  addition,  the  vessel  would 
be  liable  even  though  she  were  put  there  by  a  local  harbor 
master  or  local  pilot,  because,  under  the  principles  laid  down 
in  The  China,11  the  vessel  herself  would  be  the  offender 
in  such  case,  and  could  not  plead  the  act  of  a  compulsory 
navigator  in  her  defense. 

It  is  hardly  possible,  however,  that  congress  meant  by  this 
act  to  forbid  vessels  absolutely  from  anchoring  in  navigable 
channels.  If  their  draught  of  water  is  so  great  that  they  can 
only  navigate  in  a  channel,  it  is  so  great  that  they  can  only 
anchor  there.  At  the  same  time,  any  great  draught  and  the 
necessities  of  the  occasion  could  not  be  used  as  an  excuse 
to  blockade  the  channel. 

The  true  meaning  of  the  act  probably  is  that  vessels  are 
thereby  forbidden  from  completely  obstructing  the  channel, 
or  so  obstructing  it  as  to  render  navigation  difficult.  The 
language  of  the  act  is,  "prevent  or  obstruct."  Hence,  if  a 
vessel  anchors  in  a  navigable  channel,  where  other  vessels 
had  been  accustomed  to  anchor,  and  anchors  in  such  a  way 
as  to  leave  a  sufficient  passageway  for  vessels  navigating 
that  channel,  she  can  hardly  be  held  to  violate  this  statute. 
If  she  was  put  there  by  local  authority, — as  by  a  local  pilot 
or  harbor  master, — that  would  be  evidence  in  her  favor  to 
show  that  she  was  not  guilty  of  negligence ;  but  even  that 
would  not  excuse  her  for  completely  obstructing  the  chan- 
nel, or  so  far  obstructing  it  as  to  render  navigation  around 

11  7  Wall.  53,  19  L.  Ed.  97. 


§    142)  THE    GENERAL    PRECAUTION    RULE.  265 

her  difficult.  Neither  the  vessel  herself  nor  any  local  au- 
thority can  be  justified  in  blockading  or  rendering  it  unrea- 
sonably difficult. 

In  the  City  of  Reading,12  a  vessel  was  anchored  outside 
the  regular  harbor  grounds  by  a  pilot, — a  fact  unknown  to 
her  officers,  as  they  were  strangers  in  the  port.  District 
Judge  McPherson  held  that  the  vessel  was  not  negligent  for 
such  an  anchorage  under  such  circumstances.  The  learned 
judge  does  not  cite  the  China  Case  in  his  opinion.  It  is 
difficult  to  understand  how  his  decision  can  be  reconciled 
with  that  case.  Nor  does  he  allude  to  the  act  of  congress 
above  referred  to,  although  the  accident  happened  on  Sep- 
tember 18,  1899,  six  months  after  the  act  went  into  effect. 

In  the  absence  of  any  construction  of  this  statute  by  the 
court,  the  author  believes  that  the  above  is  the  real  intention 
of  the  act,  and  will  be  finally  adopted  when  the  matter  comes 
up  for  judicial  decision. 

SAME— WRECKS. 

142.  The  owner  of  a  vessel  sunk  in  collision  is  not 
liable  for  subsequent  damages  done  by  her 
if  he  abandons  her,  but  is  liable  if  he  ex- 
ercises any  acts  of  ownership.  In  the  latter 
case  he  is  required  to  put  a  beacon  on  her 
at  night,  and  a  plain  buoy  in  the  day. 

The  reason  why  an  owner  who  abandons  a  vessel  is  not 
liable  for  any  further  damage  is  that  his  misfortune  is  already 
great  enough,  and,  if  he  feels  that  he  cannot  afford  to  save 
his  vessel,  the  courts  will  not  add  to  his  responsibility.  Un- 
der the  federal  statutes  the  government  takes  charge  of 
abandoned  wrecks,  and  blows  them  up,  or  otherwise  de- 
stroys them ;  or,  if  it  does  not  care  to  do  so,  sells  the  wreck 

12  id.  c.i  lOu  Fed.  U'JU;  aitii'med  (O.  C.  A..)  lus  Fed.  079,  on  an- 
other point. 


266         RULES  AS  TO  NARROW  CHANNELS,  ETC.      (Ch.  13* 

after  a  certain  advertisement,  and  requires  the  purchaser  to 
remove  them  as  obstructions  from  the  channel.1 

The  law  on  this  subject  of  the  duty  of  owners  of  sunken 
wrecks  may  be  seen  from  the  cases  of  The  Utopia,2  U.  S. 
v.  Hall,3  and  Ball  v.  Berwind.4 

If  the  owner,  instead  of  abandoning  his  wreck,  decides  to 
raise  her,  he  is  then  responsible  for  any  injury  done  by  her 
from  the  failure  to  take  proper  precaution. 

In  fact,  this  is  one  case  where  there  may  be  a  liability 
even  for  the  acts  of  an  independent  contractor.  As  a  gen- 
eral rule,  when  an  independent  contractor  is  employed  to 
undertake  work  which  an  employer  can  lawfully  let  out  to 
contract,  he  alone,  and  not  the  owner,  is  responsible ;  B  but, 
where  the  act  that  is  being  done  is  unlawful  in  itself,  then 
the  owner  may  be  responsible,  even  for  the  acts  of  an  in- 
dependent contractor.  To  obstruct  a  navigable  channel 
without  giving  proper  notice  is  an  act  unlawful  in  itself,  just 
as  the  obstruction  of  a  highway  or  street  would  be  under 
similar  circumstances ;  and  therefore,  when  the  owner  of  a 
vessel  is  having  her  raised  by  an  independent  contractor,  and 
the  contractor  omits  to  put  proper  lights  or  buoys  upon  the 
wreck,  the  owner  also  is  liable ;  and  he  is  liable  for  any  lack 
of  due  diligence  in  raising  the  wreck.6 

In  the  case  of  McCaulley  v.  Philadelphia,7  a  different  con- 
clusion was  reached  under  somewhat  different  facts.  While 
the  decision  may  be  justified  on  the  special  facts,  the  Eng- 
lish case  above  cited  seems  to  agree  better  with  principle. 

§  142.     i  Act  March  3,  1899  (30  Stat.  1154,  §§  19,  20). 

2  [1893]  App.  Cas.  492. 

«  11  C.  C.  A.  294,  63  Fed.  473. 

*  (D.  C.)  29  Fed.  541. 
e  Ante,  pp.  188-192. 

*  The  Snark  [1899]  Prob.  74;    Id.  [1900]  Prob.  105. 

*  (D.  C.)  103  Fed.  661. 


§    143)  THE    STAND-BY    ACT.  267 

THE  STAND-BY  ACT. 

143.  This  act  requires  colliding  steamers  to  stay  by- 
each  other  regardless  of  the  question  of 
fault,  on  pain  of  being  presumed  negligent 
if  they  disregard  this  duty. 

The  act  of  September  4,  1890,  provides  as  fojlows: 
"Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled,  that 
in  every  case  of  collision  between  two  vessels  it  shall  be  the 
duty  of  the  master  or  person  in  charge  of  each  vessel,  if  and 
so  far  as  he  can  do  so  without  serious  danger  to  his  own 
vessel,  crew,  and  passengers  (if  any),  to  stay  by  the  other 
vessel  until  he  has  ascertained  that  she  has  no  need  of  fur- 
ther assistance,  and  to  render  to  the  other  vessel,  her  mas- 
ter, crew,  and  passengers  (if  any)  such  assistance  as  may  be 
practicable  and  as  may  be  necessary  in  order  to  save  them 
from  any  danger  caused  by  the  collision,  and  also  to  give  to 
the  master  or  person  in  charge  of  the  other  vessel  the  name 
of  his  own  vessel  and  her  port  of  registry,  or  the  port  or 
place  to  which  she  belongs,  and  also  the  name  of  the  ports 
and  places  from  which  and  to  which  she  is  bound.  If  he  fails 
so  to  do,  and  no  reasonable  cause  for  such  failure  is  shown, 
the  collision  shall,  in  the  absence  of  proof  to  the  contrary, 
be  deemed  to  have  been  caused  by  his  wrongful  act,  neglect 
or  default. 

"Sec.  2.  That  every  master  or  person  in  charge  of  a  Unit- 
ed ctates  vessel  who  fails,  without  reasonable  cause,  to  ren- 
der such  assistance  or  give  such  information  as  aforesaid 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  lia- 
ble to  a  penalty  of  one  thousand  dollars,  or  imprisonment 
for  a  term  not  exceeding  two  years ;  and  for  the  above  sum 
the  vessel  shall  be  liable  and  may  be  seized  and  proceeded 
against  by  process  in  any  district  court  of  the  United  States 


268         RULES  AS  TO  NARROW  CHANNELS,  ETC.      (Ch.  13  * 

by  any  person ;   one-half  such  sum  to  be  payable  to  the  in- 
former and  the  other  half  to  the  United  States."1 

This  is  a  copy  of  the  English  act  on  the  same  subject,  and 
is  intended  to  prevent  a  ship,  even  if  faultless  herself,  from 
leaving  the  other  to  her  fate,  and  also  to  give  the  informa- 
tion necessary  as  the  basis  of  any  proceeding  for  damages. 

Presumptions  against  Violator  of  Act. 

The  act  merely  raises  a  presumption  in  the  absence  of 
evidence  to  the  contrary.  Hence,  if  the  case  is  tried  on 
plenary  proofs,  the  act  does  not  do  more  than  shift  a  nicely- 
balanced  burden  of  proof.  The  master  may  be  punished  for 
his  inhumanity  under  the  second  section,  but  his  innocent 
.  owners  cannot  be  mulcted  in  damages  on  that  account  if 
their  vessel  was  guiltless  of  contributing  to  the  collision. 
As  Dr.  Lushington  says  in  The  Queen  of  the  Orwell : 2 
"Now  for  the  penalty,  or  what  may  be  called  the  penalty: 
'In  case  he  fails  so  to  do,  and  no  reasonable  excuse  for 
said  failure,'  it  shall  be  attended  with  certain  consequences 
which  are  enumerated  in  the  enactment.  The  effect  of  that, 
I  think,  is  precisely  what  has  been  stated, — that,  supposing 
such  a  state  of  things  to  occur,  there  is  thrown  upon  the 
party  not  rendering  assistance  the  burden  of  proof  that  the 
collision  was  not  occasioned  by  his  wrongful  act,  neglect,  or 
default.  It  does  not  go  further.  Assuming  this  case  to 
come  within  the  provisions  of  the  statute,  the  proper  ques- 
tion I  shall  have  to  put  to  you  is  that  which  I  should  put  if 
no  such  statute  at  all  existed :  whether  this  collision  was 
occasioned  by  the  wrongful  act,  neglect,  or  default  of  the 
steamer." 

The  leading  American  case  on  the  subject  is  THE  HER- 
CULES.3 

§  143.     i  26  Stat.  425. 

8  1  M.  L.  Cas.  (O.  S.)  300. 

«  26  C.  C.  A.  301,  80  Fed.  998. 


§    144)  DAMAGES    IN    COLLISION    CASES.  269 

CHAPTER  XIV. 

OF  DAMAGES  IN  COLLISION  CASES. 

144.  Recovery  Based  on  Negligence. 

14o.  Inevitable  Accident  or  Inscrutable  Fault 

146.  One  Solely  in  Fault 

147.  Both  In  Fault 

148.  Rights  of  Third  Party  where  Both  In  Fault 

149.  Contribution  between  Colliding  Vessels— Enforcement  In  Suit 

against  Both. 

150.  Enforcement  by  Bringing  in  Vessel  not  Party  to  Suit 

151.  Enforcement  by  Independent  Suit 

152.  Measure  of  Damages. 

153.  When  Loss  Total. 

154.  When  Loss  Partial. 

155.  Remoteness  of  Damages— Subsequent  Storm. 

156.  Doctrine  of  Error  in  Extremis. 

RECOVERY  BASED  ON  NEGLIGENCE. 

144.  Negligence  is  an  essential  to  recovery  of  dam- 
ages in  collision  cases. 

The  mere  happening  of  a  collision  does  not  give  rise  to  a 
right  of  action  for  damages  resulting  therefrom  except  in 
those  cases  where,  under  the  navigation  rules,  one  vessel  is 
presumed  to  be  in  fault  until  she  exonerates  herself.  Even 
in  those  cases  the  right  of  recovery  is  based,  not  upon  the 
mere  collision,  but  upon  the  presumption  of  negligence. 

A  collision  may  happen  under  any  one  of  several  circum- 
stances. It  may  arise  without  fault,  it  may  arise  by  the  fault 
of  either  one  of  the  two,  or  it  may  arise  by  the  fault  of  both. 
The  law,  as  administered  in  the  admiralty  courts,  is  well 
summarized  by  Lord  Stowell  in  the  case  of  THE  WOOD- 
ROP-SIMS.1     In  it  he  says: 

5  14-1.     i  2  Dod.  83. 


270  DAMAGES    IN    COLLISION    CASES.  (Ch.    14 

"In  the  first  place,  it  [collision]  may  happen  without 
blame  being  imputable  to  either  party;  as,  where  the  loss 
is  occasioned  by  a  storm,  or  other  vis  major.  In  that  case 
the  misfortune  must  be  borne  by  the  party  on  whom  it  hap- 
pens to  light ;  the  other  not  being  responsible  to  him  in  any 
degree.  Secondly,  a  misfortune .  of  this  kind  may  arise 
where  both  parties  are  to  blame, — where  there  has  been  want 
of  clue  diligence  or  of  skill  on  both  sides.  In  such  a  case 
the  rule  of  law  is  that  the  loss  must  be  apportioned  between 
them,  as  having  been  occasioned  by  the  fault  of  both  of 
them.  Thirdly,  it  may  happen  by  the  misconduct  of  the 
suffering  party  only;  and  then  the  rule  is  that  the  sufferer 
must  bear  his  own  burden.  Lastly,  it  may  have  been  the 
fault  of  the  ship  which  ran  the  other  down ;  and  in  this  case 
the  innocent  party  would  be  entitled  to  an  entire  compen- 
sation from  the  other." 

The  question  must  be  considered — First,  as  between  the 
two  ships ;    and,  second,  as  respects  third  parties. 

As  between  the  owners  of  the  two  ships,  it  must  be  con- 
sidered— First,  where  neither  is  in  fault ;  second,  where  one 
alone  is  in  fault ;  third,  where  both  are  in  fault. 

INEVITABLE   ACCIDENT    OR   INSCRUTABLE  FAULT. 

145.  Where  neither  vessel  is  in  fault,  or  where  the 
fault  is  inscrutable,  neither  can  recover,  and 
the  loss  rests  where  it  falls. 

Meaning  of  " Inevitable  Accident.'*'' 

A  collision  arising  by  inevitable  accident  comes  under  this 
clause. 

An  "inevitable  accident,"  in  the  sense  in  which  it  is  used 
in  this  connection,  does  not  mean  an  accident  unavoidable 
under  any  circumstances,  but  one  which  the  party  accused 
cannot  prevent  by  the  exercise  of  ordinary  care,  caution,  and 


§    145)       INEVITABLE    ACCIDENT    OR    INSCRUTABLE    FAULT.  27 1 

maritime  skill.  This  definition  is  taken  from  the  case  of 
THE  MARPESIA.1 

In  the  case  of  THE  GRACE  GIRDLER,2  the  court  says : 
"Inevitable  accident  is  where  a  vessel  is  pursuing  a  lawful 
avocation  in  a  lawful  manner,  using  the  proper  precautions 
against  danger,  and  an  accident  occurs.  The  highest  degree 
of  caution  that  can  be  used  is  not  required.  It  is  enough 
that  it  is  reasonable  under  the  circumstances ;  such  as  is 
usual  in  similar  cases,  and  has  been  found  by  long  experi- 
ence to  be  sufficient  to  answer  the  end  in  view, — the  safety 
of  life  and  property.  Where  there  is  a  reasonable  doubt  as 
to  which  party  is  to  blame,  the  loss  must  be  sustained  by  the 
party  on  whom  it  has  fallen." 

In  The  Mabey  3  the  same  idea  is  expressed  thus :  "Where 
the  collision  occurs  exclusively  from  natural  causes,  and 
without  any  negligence  or  fault  on  the  part  of  either  party, 
the  rule  is  that  the  loss  must  rest  where  it  fell,  as  no  one  is 
responsible  for  an  accident  which  was  produced  by  causes 
over  which  human  agency  could  exercise  no  control.  Such 
a  doctrine,  however,  can  have  no  application  to  a  case  where 
negligence  or  fault  is  shown  to  have  been  committed  on  ei- 
ther side.  Inevitable  accident,  as  applied  to  a  case  of  this 
description,  must  be  understood  to  mean  a  collision  which 
occurs  when  both  parties  have  endeavored,  by  every  means  in 
their  power,  with  due  care  and  caution,  and  a  proper  dis- 
play of  nautical  skill,  to  prevent  the  occurrence  of  the  acci- 
dent, and  where  the  proofs  show  that  it  occurred  in  spite  of 
everything  that  nautical  skill,  care,  and  precaution  could  do 
to  keep  the  vessels  from  coming  together." 

The  reason  for  this  is  that  it  is  unfair  to  hold  any  one  re- 
sponsible for  a  disaster  produced  by  causes  over  which  hu- 
man skill  and  prudence  can  exercise  no  control.* 

§   145.     i  L.  R.  4  P.  0.  212. 

»7  Wall.  Hi';.  1!)  L.  Ed.  113. 

•  14  Wnll.  204,  20  L.  K<1.  881. 

*The  Sunnyslde,  91  U.  S.  208  210,  23  L.  Ed.  302. 


272  DAMAGES    IN    COLLISION    CASES.  (Ch.   14  - 

Under  this  class  may  be  ranged  those  cases  where  acci- 
dents happen  from  the  breakdown  of  machinery.  For  in- 
stance, in  The  William  Lindsay,5  a  vessel  was  tied  to  a  reg- 
ular mooring  buoy  in  the  harbor.  During  a  storm  the  buoy 
broke  loose,  and  in  trying  to  put  out  an  anchor  the  cable 
on  the  windlass  became  jammed.  The  court  held  that  it  was 
an  inevitable  accident. 

In  the  case  of  The  Olympia,9  a  collision  was  caused  by 
the  breaking  of  a  tiller  rope  from  a  latent  defect,  the  proof 
showing  that  it  had  been  carefully  inspected.  The  court 
held  that  it  was  an  inevitable  accident. 

On  the  other  hand,  in  The  M.  M.  Caleb,7  where  a  rudder 
chain  broke  from  a  defect  which  was  discoverable  by  the 
exercise  of  reasonable  care,  the  court  held  that  it  was  neg- 
ligence, and  not  an  inevitable  accident. 

Collisions  may  occur  from  an  inevitable  accident,  even 
though  nothing  breaks,  and  there  is  no  vis  major.  In  The 
Java  8  a  small  schooner,  which  came  from  behind  a  large 
school-ship,  was  struck  by  a  steamer  coming  from  the  other 
side,  and  it  appeared  that  the  steamer  could  not  have  seen 
the  sail  vessel  on  account  of  the  large  ship.  The  court  held 
that  the  accident  was  inevitable. 

In  the  case  of  The  Transfer  No.  3,9  one  boat  was  gradu- 
ally overhauling  another,  and,  when  in  a  position  where  she 
could  not  stop  in  time  to  avoid  collision,  the  machinery  of 
the  front  boat  broke  down.  The  case  was  held  one  of  in- 
evitable accident. 

"L.R.5  P.  C.  338. 

e  9  C.  C.  A.  393,  61  Fed.  120. 

t  10  Blatchl-.  467,  Fed.  Gas.  No.  9,683. 

«  14  Wall.  189,  20  L.  Ed.  834. 

»  (D.  C.)  91  Fed.  803. 


§    1-1  i  J  BOTH    IN    FAULT.  273 

ONE  SOLELY  IN  FAULT. 

146.  Where  one  alone  is  in  fault,  that  one  alone  is 

liable. 
This  is  so  obvious  that  further  discussion  seems  unneces- 
sary. 

BOTH  IN  FAULT. 

147.  Where   both    are   in   fault,   the   damages    are 

equally  divided,  irrespective  of  the  degree  of 
fault. 

This  is  the  settled  law  in  England  and  America,  and  marks 
a  sharp  distinction  between  the  common-law  and  admiralty 
courts.  The  distinction  between  the  two  forums  is  well 
summarized  in  the  case  of  CAYZER  v.  CARRON  CO.,1  in 
which  the  court  said : 

"Now,  upon  that  I  think  there  is  no  difference  between 
the  rules  of  law  and  the  rules  of  admiralty  to  this  extent : 
That,  where  any  one  transgresses  a  navigation  rule,  whether 
it  is  a  statutory  rule,  or  whether  it  is  a  rule  that  is  imposed  by 
common  sense, — what  may  be  called  the  common  law, — and 
thereby  an  accident  happens,  of  which  that  transgression  is 
the  cause,  he  is  to  blame,  and  those  who  are  injured  by  the 
accident,  if  they  themselves  are  not  parties  causing  the  ac- 
cident, may  recover  both  in  law  and  in  admiralty.  If  the  ac- 
cident is  a  purely  inevitable  accident,  not  occasioned  by  the 
fault  of  either  party,  then  common  law  and  admiralty  equal- 
ly say  that  the  loss  shall  lie  where  it  falls, — each  party  shall 
bear  his  own  loss.  Where  the  cause  of  the  accident  is  the 
fault  of  one  party,  and  one  party  only,  admiralty  and  com- 
mon law  both  agree  in  saying  that  that  one  party  who  is 
to  blame  shall  bear  the  whole  damage  of  the  other.  When 
the  cause  of  the  accident  is  the  fault  of  both,  each  party 

S  147.     i  9  App.  Cas.  873. 

HUGHES, AD.— 18 


274  DAMAGES    IN    COLLISION    CASES.  (Ch.    14. 

being  guilt}  of  Manic  which  causes  the  accident,  there  is  a 
difference  between  the  rule  of  admiralty  and  the  rule  of 
common  law.  The  rule  of  common  law  says,  as  each  occa- 
sioned the  accident,  neither  shall  recover  at  all,  and  it  shall 
be  just  like  an  inevitable  accident ;  the  loss  shall  lie  where 
it  falls.  Admiralty  says,  on  the  contrary,  if  both  contribut- 
ed to  the  loss,  it  shall  be  brought  into  hotchpotch,  and  di- 
vided between  the  two.  Until  the  case  of  Hay  v.  Le  Neve,* 
which  has  been  referred  to  in  the  argument,  there  was  a 
question  in  the  admiralty  court  whether  you  were  not  to 
apportion  it  according  to  the  degree  in  which  they  were  to 
blame ;  but  now  it  is,  I  think,  quite  settled,  and  there  is  no 
dispute  about  it,  that  the  rule  of  the  admiralty  is  that,  if 
there  is  blame  causing  the  accident  on  both  sides,  they  are 
to  divide  the  loss  equally,  just  as  the  rule  of  law  that,  if  there 
is  blame  causing  the  accident  on  both  sides,  however  small 
that  blame  may  be  on  one  side,  the  loss  lies  where  it  falls." 

The  doctrine  was  adopted  in  America  in  the  case  of  THE 
CATHARINE,2  and  has  been  followed  in  numerous  subse- 
quent cases,  in  all  of  which  the  supreme  court  treats  the  law 
on  the  subject  as  settled.8 

In  arriving  at  the  apportionment  of  damages  when  the 
injuries  to  the  two  vessels  are  unequal,  the  doctrine  is  not 
that  the  losses  of  each  vessel  are  treated  as  separate  causes 
of  action  asserted  as  cross  causes,  but  that  it  is  one  cause 
of  action  only,  and  the  vessel  most  injured  is  entitled  to  a 
decree  for  half  the  difference  between  her  loss  and  the 
other.4 

If,  for  any  reason,  the  limited  liability  act  protects  the 

•2  Shaw,  395. 

2  17  How.  170,  15  L.  Ed.  233. 

s  See,  as  illustrations,  The  Maria  Martin,  12  Wall.  31,  20  L.  Ed. 
251:   THE  NORTH  STAR,  106  U.  S.  17,  1  Sup.  Ct.  41,  27  L.  Ed.  91. 

■*  The  Stoomvaart  Maatschappy  Nedeiiand  v.  Navigation  Co.,  7 
App.  Cas.  795;  The  Manitoba,  122  U.  S.  97,  7  Sup.  Ct.  115S,  30  L.  Ed. 
1095. 


§    147)  BOTH    IN    FA.ULT.  275 

owners  of  one  vessel  from  having  to  pay  their  moiety,  the 
owners  of  the  other  vessel,  if  a  third  party  has  held  them  for 
more  than  their  moiety,  can  recoup  their  loss,  or  plead  it  in 
set-off  against  the  claim  which  the  other  vessel  would  other- 
wise have  against  them.5 

An  interesting  illustration  of  this  doctrine  is  the  case  of 
The  Chattahoochee.6  There  the  shippers  on  one  vessel, 
who  were  prevented  by  the  provisions  of  the  Harter  act  from 
recovering  against  their  own  vessel,  proceeded  against  the 
other,  and  held  the  other  for  their  loss.  The  vessel  so  held 
was  permitted  to  plead  this  payment  to  the  shipper  in  re- 
duction of  its  liability  to  the  other  vessel,  although  there- 
by the  other  vessel  was  made  indirectly  responsible  to  the 
shipper,  when  it  could  not  have  been  in  a  direct  proceeding. 

Origin  of  the  Half- Damage  Rule. 

In  examining  the  history  of  this  half-damage  rule,  it  is 
remarkable  that  the  courts  have  adopted  as  a  case  for  divi- 
sion of  damages  simply  the  case  of  mutual  fault.  This  was 
not  the  origin  of  the  rule.  It  may  be  traced  at  least  as  far 
back  as  the  Laws  of  Oleron,  article  14  of  which  provides: 

"If  a  Vessel  being  moar'd  lying  at  Anchor,  be  struck  or 
grappled  with  another  vessel  under  sail  that  is  not  very  well 
steer'd,  whereby  the  vessel  at  anchor  is  prejudic'd,  as  also 
wines,  or  other  merchandize,  in  each  of  the  said  ships 
damnify'd.  In  this  case  the  whole  damage  shall  be  in  com- 
mon, and  be  equally  divided  and  appriz'd  half  by  half ;  and  the 
Master  and  Mariners  of  the  vessel  that  struck  or  grappled 
with  the  other,  shall  be  bound  to  swear  on  the  Holy  Evange- 
lists, that  they  did  it  not  willingly  or  wilfully.  The  reason 
why  this  judgment  was  first  given,  being,  that  an  old  decay 'd 
vessel  might  not  purposely  be  put  in  the  way  of  a  better, 
which  will  the  rather  be  prevented  when  they  know  that  the 
damage  must  be  divided." 

b  THE  NORTH  STAR,  100  U.  S.  17,  1  Sup.  Ct.  41,  27  L.  Ed.  »L 
•  173  U.  S.  540,  19  Sup.  Ct.  -401,  43  L.  Ed.  SOI. 


276  DAMAGES    IN    COLLISION    CASES.  (Ch.    14   - 

Under  this  provision  the  damages  were  divided  not  only 
as  among  the  vessels,  but  the  cargoes,  and  that,  too,  wheth- 
er negligent  or  not,  unless  it  was  intentional. 

Article  26  of  the  Laws  of  Wisbuy  apportions  the  loss  as 
between  the  two  ships,  but  only  in  cases  of  accident,  not  in 
ease  of  fault.  On  the  other  hand,  title  7,  §§  10,  II,  of  the 
Ordonnance  of  Louis  XIV.,  provides: 

"X.  In  case  of  ships  running  aboard  each  other,  the  dam- 
age shall  be  equally  sustained  by  those  that  have  suffered 
and  done  it,  whether  during  the  course,  in  a  road,  or  in  a 
harbour. 

"XI.  But  if  the  damage  be  occasioned  by  either  of  the 
masters,  it  shall  be  repaired  by  him." 

Thus  it  is  clear  that  the  application  of  the  rule  in  modern 
times  is  much  narrower  than  it  was  in  its  origin. 

An  examination  of  these  old  codes  reveals  another  very 
important  fact  in  relation  to  it,  and  that  is  that  it  originated 
not  in  the  law  of  torts,  but  in  the  law  of  average.  It  is  un- 
der that  head  in  the  Ordonnance  of  Louis  XIV.,  and  the 
language  of  the  others  shows  that  it  was  treated  as  a  con- 
tribution, and  not  as  a  mere  liability  on  the  ground  of  tort. 
The  importance  of  this  will  appear  in  an  early  connection. 

The  doctrine  of  an  equal  division,  no  matter  how  the  fault 
may  compare,  is  so  well  settled  by  repeated  decisions  that  it 
can  hardly  be  considered  open  to  question.  There  is  one 
case  in  which  the  court  refused  to  apply  it.  In  the  case  of 
THE  VICTORY,7  which  was  a  collision  between  two  Eng- 
lish ships  in  Norfolk  harbor,  the  district  court  decided  the 
Victory  alone  at  fault.  An  appeal  was  taken,  and  the  case 
hotly  contested  in  the  circuit  court  of  appeals  on  the  main 
question  of  fault,  no  question  as  to  the  apportionment  of 
damage  being  raised  either  in  the  record  or  briefs.  The 
circuit  court  of  appeals  reversed  the  decision  of  the  district 
court  on  the  facts,  and  held  both  at  fault,  but  the  fault  of 

t  (D.  G.)  63  Fed.  631;   15  C.  G.  A.  490,  68  Fed.  395. 


§    147)  BOTH    IN    FAULT.  277 

the  Victory  to  be  the  more  flagrant  of  the  two ;  and  it  ap- 
portioned the  loss  by  making  the  owners  of  the  Victory  pay 
the  full  value  of  their  vessel,  and  the  owners  of  the  Plym- 
othian  merely  pay  the  deficit  sufficient  to  satisfy  the  cargo 
owners  in  full.  A  certiorari  was  applied  for  and  obtained, 
and  the  case  was  argued  in  the  supreme  court,  but  that  tribu- 
nal held  the  Victory  alone  at  fault,  and  reversed  the  decision 
of  the  circuit  court  of  appeals,  so  that  the  judgment  of  the 
latter  on  that  question  can  hardly  be  considered  a  precedent 
on  the  question  of  the  proper  method  of  apportioning  the 
damage. 

The  reason  given  by  Dr.  Lushington  for  an  equal  division, 
even  where  the  fault  is  unequal,8  is  the  impossibility  of  ap- 
portioning accurately  under  such  circumstances,  and  the  un- 
certainty which  it  would  introduce  into  litigation.  No  two 
judges  might  agree  as  to  the  exact  proportions  to  be  made, 
and  it  would  be  impossible  for  counsel  in  any  collision  case 
to  advise  with  any  degree  of  accuracy. 

A  modification  of  the  old  rule  that  contributory  negligence 
defeats  recovery  has  been  recently  attempted  in  some  of  the 
common-law  courts  by  the  introduction  of  the  doctrine  of 
comparative  negligence,  which  is  intended  to  allow  a  jury  to 
apportion  the  damages  according  to  the  degree  of  fault. 
The  uncertainties  arising  from  it,  and  the  increase  of  liti- 
gation attendant  upon  all  uncertainty,  have  prevented  its 
general  adoption;  and,  even  as  to  the  few  jurisdictions  that 
have  adopted  it,  the  opinion  of  a  distinguished  text  writer  is 
that  it  has  caused  more  confusion  than  benefit.9 

This  question  has  received  a  great  deal  of  discussion  in 
the  past  few  years  as  an  academic  question  among  maritime 
writers,  but,  so  far  as  the  decisions  are  concerned,  it  is  so 
well  settled  that  only  statutory  enactment  could  change  it. 

•  The  Milan,  Lush.  388. 

•  2  Wood,  li.  R.  (Ed.  1804)  p.  1506,  §  322b. 


^78  DAMAGES    IN    COLLISION    CASES.  (Ch.    14 

BIGHTS  OF  THIRD  PARTY  WHERE  BOTH  IN  FAULT. 

148.  An  innocent  third  party  can  recover  against 
both  vessels,  but  the  form  of  his  decree  is 
not  a  general  decree  against  both,  but  a  de- 
cree for  half  against  each,  with  a  remedy 
over  against  the  other  in  case  the  values  are 
insufficient. 

In  England,  in  such  cases,  he  can  only  recover  half  against 
each,  and  cannot  make  up  his  deficit  against  the  other. 
Damages  to  third  vessels,  as  well  as  between  the  two  col- 
liding ships,  are  brought  into  the  estimate.1 

The  form  of  this  decree  shows  that  the  doctrine  did  not 
find  its  origin  in  the  law  of  torts,  although  many  judges  speak 
of  the  two  vessels  as  joint  tort  feasors.  The  supreme  court 
has  sedulously  guarded  the  form  of  this  decree,  even  cor- 
recting it  in  some  instances  where  the  question  was  not  a 
material  one,  as  the  values  were  sufficient.  This  form  of 
decree  was  announced  in  the  case  of  The  Washington,2 
which  was  a  case  of  a  passenger  on  a  ferryboat  injured  by 
the  joint  negligence  of  his  boat  and  another  vessel. 

In  the  case  of  The  Alabama,3  a  vessel  in  tow  was  injured 
by  the  joint  negligence  of  her  tug  and  another  vessel.  The 
court  gave  the  decree  in  the  form  above  stated. 

But  this  is  a  rule  intended  to  do  justice  as  between  the 
wrongdoers,  and  will  not  be  so  applied  as  to  deprive  an  in- 
nocent party  of  his  right  of  full  recovery.  Hence,  in  THE 
ATLAS,4  a  shipper  on  one  of  two  vessels,  both  of  which 
were  in  fault,  proceeded  against  one  vessel  alone,  and  it  was 
held  that  he  was  entitled  to  do  so,  and  to  recover  his  full 

§  148.     i  The  Frankland  [1901]  Prob.  161. 

*  9  Wall.  513,  19  L.  Ed.  787. 
»  92  U.  S.  695,  23  L.  Ed.  763. 

*  93  U.  S.  302,  23  L.  Ed.  863. 


§    148)       RIGHTS  OF  THIRD  PARTY  WHERE  BOTH  IN  FAULT.         279 

damage  from  that  vessel.  The  question  is  thoroughly  dis- 
cussed in  the  opinion  delivered  by  Mr.  Justice  Clifford,  who 
seems  to  treat  it  as  much  on  the  basis  of  an  average  contri- 
bution as  upon  the  basis  of  a  tort ;  that  average  contribu- 
tion, however,  to  be  applied  simply  as  between  the  two  in 
fault.5 

But  the  only  deficit  which  the  more  valuable  vessel  must 
make  up  is  a  deficit  in  the  value  of  the  other  vessel.  Hence 
the  third  party,  who  is  disabled  by  contract,  or  by  any  rule 
of  law  from  proceeding  against  his  own  vessel,  cannot  re- 
cover the  entire  damages  from  the  other  vessel.  In  such 
case,  if  he  proceeds  against  her  alone,  he  can  only  recover 
half  damages.  For  instance,  under  the  Harter  act,  a  ship- 
per, who  is  prevented  from  holding  his  own  vessel  on  the 
ground  that  the  negligence  causing  the  collision  is  one 
against  which  the  vessel  owner  is  protected  by  that  act,  must 
credit  the  other  vessel  with  the  half  which  he  could  other- 
wise recover  from  his  own  vessel.8 

So,  too,  a  member  of  a  crew  who  is  injured  in  a  collision 
by  the  joint  negligence  of  his  own  vessel  and  another,  and 
who  is  prevented  from  proceeding  against  his  own  vessel  by 
the  fellow-servant  doctrine,  can  only  recover  half  from  the 
other  vessel.7 

Thus  the  liability  of  the  other  vessel  to  make  up  any  def- 
icit must  arise  simply  from  the  deficit  in  values,  not  from  a 
deficit  caused  by  a  rule  of  law  which  affects  the  right  of  re- 
covery of  the  injured  party  against  his  own  vessel. 

b  See.  also.  The  Sterling.  106  U.  S.  047,  1  Sup.  Ct.  80.  27  L.  Ed.  98; 
The  New  York.  175  U.  S.  1S7.  20  Sup.  Ct.  67,  44  L.  Ed.  126. 

«  The  Niagara  (D.  C.)  77  Fed.  329;  Id.,  28  C.  C.  A.  52S.  84  Fed.  902; 
The  Rosedale  (D.  0.)  88  Fed.  324;    Id.,  35  C.  C.  A.  107,  92  Fed.  1021. 

i  The  Queen  (D.  C.)  40  Fed.  694;  The  Job  T.  Wilson  (D.  C.)  84  Fed. 
204;  Jakobsen  v.  Springer,  31  C.  C.  A.  315.  87  Fed.  948;  Id.,  174  U. 
S.  802,  19  Sup.  Ct.  885  (mem.). 


280  DAMAGES    IN    COLLISION    CASES.  (Ch.    14' 


CONTRIBUTION    BETWEEN     COLLIDING    VESSELS- 
ENFORCEMENT  IN  SUIT  AGAINST 
BOTH. 

149.  Where  both  are  negligent,  and  have  been 
brought  before  the  court  by  a  joint  libel 
against  both,  this  contribution  -will  be  en- 
forced. 

Under  the  cases  already  cited  in  a  previous  discussion, 
the  form  of  the  decree  by  which  the  third  party  is  simply 
given  a  decree  for  half,  with  a  contingent  remedy  over,  is 
itself  an  enforcement  of  the  right  of  contribution.  At  com- 
mon law,  in  cases  where  no  contribution  existed  as  between 
wrongdoers,  the  decree  was  in  solido  against  each,  and,  if 
the  plaintiff  levied  his  execution,  and  made  his  money  out  of 
one,  that  one  could  not  compel  the  other  to  pay  his  part. 
These  different  forms  of  judgment  or  decree  show  the  dif- 
ference in  the  origin  of  the  two  doctrines  at  common  law  and 
in  admiralty. 

SAME— ENFORCEMENT    BY     BRINGING    IN    VESSEL 
NOT  PARTY  TO  SUIT. 

160.  Under  the  fifty-ninth  admiralty  rule,  -where 
the  third  party  has  proceeded  against  only 
one,  that  one  can,  by  petition,  compel  the  li- 
belant to  bring  in  the  other  vessel,  if  -with- 
in reach  of  the  process  of  the  court. 

This  fifty-ninth  rule  in  admiralty  was  promulgated  on 
March  26,  1883. 1  It  was  the  outgrowth  of  the  decisions  in 
reference  to  the  form  of  decree,  and  was  intended  to  pre- 
vent the  injustice  of  leaving  it  to  the  caprice  of  the  libelant 

§  150.     1  112  U.  S.  743. 


§    151  CONTRIBUTION    BETWEEN    COLLIDING    VESSELS.  281 

as  to  which  of  two  colliding  vessels  he  should  hold.  Just 
prior  to  its  promulgation  the  case  of  THE  HUDSON  2  had 
been  decided  by  District  Judge  Brown  in  the  district  court 
for  the  Southern  district  of  New  York.  In  that  decision 
Judge  Brown  sustained  a  motion  to  bring  in  as  defendant 
one  of  the  two  vessels  that  was  not  before  the  court,  and  in 
doing  so  rendered  an  opinion  as  to  the  advantages  of  the 
procedure  and  the  relative  rights  of  the  two  colliding  ves- 
sels in  such  cases.  His  learned  discussion,  both  of  the  Eng- 
lish and  American  authorities,  treats  the  matter  rather  as  a 
matter  of  contribution  or  average  than  a  matter  of  joint  tort. 
Hence,  where  vessels  are  in  the  jurisdiction,  the  fifty-ninth 
rule  permits  a  proceeding  against  the  vessel  not  sued,  which 
practically  makes  an  average  adjustment,  so  to  speak,  of  the 
loss  among  the  parties  liable.  Hence  the  right  of  contri- 
bution is  settled  at  least  in  two  classes  of  cases :  First,  those 
in  which  both  vessels  are  sued,  and  it  can  be  brought  about 
by  the  form  of  decree  or  by  recoupment ;  and,  second,  those 
in  which  only  one  vessel  is  sued,  and  the  other  vessel  is  with- 
in reach  of  the  court's  process. 

SAME— ENFORCEMENT  BY  INDEPENDENT  SUIT. 

151.  On  the  above  principles,  the  right  of  contribu- 
tion ought  to  exist  between  the  two  vessels 
by  independent  suit,  but  this  cannot  be  con- 
sidered as  settled. 

The  above  discussion  still  leaves  open  the  case  of  suit 
against  one  vessel  by  the  third  party  when  the  other  ves- 
sel is  not  within  the  jurisdiction,  and  cannot  be  reached  by 
process  under  the  fifty-ninth  rule.  Suppose  that  in  such  a 
case  the  libelant  gets  a  full  decree  against  the  vessel  before 
the  court,  and  compels  payment,  can  that  vessel  institute  an 

»  (D.  C.)  15  Fed.  162. 


282  DAMAGES    IN   COLLISION    CASES.  (Ch.    14 

independent  suit  against  the  other  vessel,  and  compel  it  to 
pay  its  portion? 

There  are  two  district  court  decisions  to  the  effect  that 
such  a  remedy  does  not  lie. 

In  the  case  of  The  Argus,1  in  the  district  court  for  the 
Eastern  district  of  Pennsylvania,  a  dredge  in  tow  of  a  tug 
collided  with  a  steamer.  The  tug  was  operating  the  dredge 
under  a  contract  between  the  owners  by  which  the  move- 
ments of  the  tug  were  controlled  entirely  by  the  tow.  The 
owners  of  the  dredge  proceeded  in  New  York  against  the 
steamer  and  tug  for  damages,  but  the  tug  was  not  served 
with  process,  and  the  dredge  owners  recovered  their  full 
damages  from  the  steamer.  Thereupon  the  steamer  paid 
the  damages,  and  libeled  the  tug  in  the  district  court  of 
Pennsylvania  to  compel  her  to  pay  her  share.  The  district 
court  held  that  there  was  no  direct  remedy  by  the  steamer 
against  the  tug;  that,  if  she  had  any  right  at  all,  it  must  be 
by  way  of  substitution  to  the  lien  which  the  libelant  had  as- 
serted ;  and  that  in  that  special  case  the  libelant  was  de- 
barred from  proceeding  against  the  tug,  as  the  management 
of  the  tug  was  solely  in  charge  of  his  own  officers.  The 
opinion  assumes,  without  discussion,  that  in  the  case  of  joint 
tort  feasors  there  is  no  recovery. 

In  the  case  of  The  Mariska,2  in  the  district  court  for  the 
Northern  district  of  Illinois,  it  was  held  that  admiralty  rule 
59  was  not  intended  to  give  a  subsequent  proceeding  of  this 
sort,  and  that,  independent  of  that  rule,  it  was  a  case  of  joint 
tort  feasors,  as  to  which  there  was  no  contribution. 

Both  these  cases  assume  that  if,  at  common  law,  a  loss  is 
caused  by  negligence,  it  is  a  case  of  joint  tort,  as  to  which 
there  is  no  contribution. 

Even  at  common  law  this  assumption  is  erroneous.  The 
rule  that  there  is  no  contribution  among  joint  tort  feasors, 

§  151.     i  (D.  C.)  71  Fed.  S91. 
2  (D.  C.)  100  Fed.  500. 


§    151)        CONTRIBUTION    BETWEEN    COLLIDING    VESSELS.  28o 

according  to  the  better  authority,  in  the  common-law  courts 
only  applies  in  cases  where  there  was  some  intentional  or 
moral  wrong  committed.  It  presupposes  an  evil  intent,  and 
as  to  such  cases  it  was  certainly  a  wise  rule.  But  the  bet- 
ter authority  is  that  this  doctrine  does  not  apply  where  the 
injury  was  unintentional,  but  arose  merely  from  negligence, 
or  the  operation  of  some  rule  of  law.8 

The  subject  has  been  considered  in  England  recently  in 
the  case  of  Palmer  v.  Wick  &  P.  Steam  Shipping  Co.4  In 
it  the  question  is  discussed  mainly  with  reference  to  the  law 
of  Scotland,  but  in  some  of  the  opinions  the  old  English 
authorities  in  which  the  doctrine  originated  are  reviewed  and 
distinguished. 

It  is  considered  also  by  Judge  Brown  in  the  case  of  THE 
HUDSON,  supra,  who  arrived  at  the  same  conclusion  with 
reference  to  the  common-law  doctrine  as  that  above  an- 
nounced. But  the  weight  of  English  authority  is  against 
contribution.8 

In  the  case  of  Armstrong  Co.  v.  Clarion  Co.,6  a  traveler 
was  injured  by  the  defective  condition  of  a  bridge  maintain- 
ably  by  two  counties.  He  sued  one  county,  and  recovered. 
Thereupon  this  county  sued  the  other,  and  the  court  sus- 
tained its  right  to  contribution,  holding  that  the  common- 
law  rule  gave  contribution  where  the  act  that  was  being  done 
was  not  unlawful,  and  that  contribution  arises  from  natural 
principles,  and  not  from  contract. 

In  the  case  of  The  Gulf  Stream,7  where  certain  shippers 
had  sued  both  vessels  in  a  collision,  one  of  the  vessels  com- 
promised a  good  many  of  the  claims  at  a  considerable  dis- 

»  Pol.  Torts,  171. 

«  [1894]  App.  Cas.  318. 

b  The  Frnnkland  [1901]  Prob.  161,  and  cases  cited. 

«  86  Pa.  218.  On  this  subject  of  contribution  at  common  law,  see 
the  note  to  the  case  of  Kirkwood  v.  Miller,  5  Sneed,  455,  73  Am.  Dec. 
147. 

T  (D.  C.)  58  Fed.  004. 


284  DAMAGES    IN    COLLISION    CASES.  (Ch.    14 

count,  and  yet  attempted  to  set  off  their  full  value  against 
the  other  vessel  in  a  settlement  between  them.  The  court 
In  td  that  the  parties  occupied  in  the  admiralty  towards  each 
Other  somewhat  the  relation  of  co-sureties,  and  that  the  oth- 
er vessel  was  entitled  to  the  benefit  of  these  compromises. 
And  in  the  case  of  THE  NORTH  STAR,8  previously  cited, 
the  opinion  reviews  the  old  admiralty  codes  on  the  subject, 
and  shows  that  the  doctrine  of  division  of  loss  in  admiralty 
cases  arose  out  of  the  principles  of  general  average,  as  has 
been  heretofore  discussed. 

If  these  last  three  cases  are  right,  it  would  seem  to  fol- 
low as  an  irresistible  conclusion  that  an  action  for  contribu- 
tion ought  to  lie  by  one  vessel  against  the  other.  The  fact 
that  there  is  no  privity  between  them  is  immaterial;  for 
general  average  and  contribution  do  not  depend  upon  ques- 
tions of  privity  or  contract,  but  upon  principles  of  natural 
justice.  Indeed,  the  very  fact  that  they  were  not  intention- 
ally concurring  in  the  act  complained  of  is  the  reason  why 
there  should  be  a  contribution,  and  why  the  common-law 
rule  does  not  apply.  Hence  the  reasoning  of  the  Pennsyl- 
vania judge  that  the  right  could  only  be  claimed  derivatively 
through  the  libelant  is  counter  to  the  original  principles  on 
which  the  doctrine  was  based.  It  has  been  seen  that  it  arose 
from  a  desire  of  the  admiralty  courts  to  adjust  equitably  the 
relations  between  the  two  vessels  themselves,  and  not 
through  any  consideration  of  the  rights  of  a  third  party 
against  them,  for  his  rights  are  unaffected  by  the  doctrine. 
And  the  other  reason  given  in  the  two  cases  above  cited, 
holding  the  adverse  doctrine  that  there  is  no  contribution 
against  tort  feasors,  is  counter  to  the  preponderance  of  au- 
thority, even  at  common  law,  which  is  to  the  effect  that, 
where  the  act  was  not  intentional,  there  may  be  a  contribu- 
tion between  tort  feasors.  Hence  it  is  believed  that,  when 
the  question  arises  untrammeled  by  other  questions,  and  is 

»  106  U.  S.  17,  1  Sup.  Ct.  41,  27  L.  Ed.  91. 


§    151)       CONTRIBUTION    BETWEEN    COLLIDING    VESSELS.  285 

fully  presented,  the  courts  will  settle  upon  the  doctrine  that 
one  of  two  vessel  owners  may  proceed  against  the  other  to 
compel  a  contribution. 

Whether  this  can  be  done  in  admiralty  or  not  is  a  ques- 
tion of  first  impression,  so  far  as  known  to  the  writer.  It 
would  seem  on  principle  that  such  a  suit  would  lie  even  in 
the  admiralty.  If  the  supreme  court,  by  rule,  can  confer 
jurisdiction  on  an  admiralty  court  to  bring  the  other  vessel 
in  by  petition,  as  is  done  by  the  fifty-ninth  rule,  that  at  least 
shows  that  the  right  is  one  of  admiralty  character,  for  a 
supreme  court  cannot,  by  rule,  make  a  thing  maritime  which 
is  not  so  by  nature.  It  can  only  give  a  maritime  remedy  to 
a  right  maritime  by  nature.  It  has  been  seen  in  another 
connection  that,  where  a  salvor  collects  the  entire  salvage 
due,  his  co-salvors  can  sue  him  in  admiralty  to  enforce  an 
appointment  or  contribution,9  and  this  would  seem  to  be  a 
similar  case.  Admiralty  has  undoubted  jurisdiction  to  com- 
pel contribution  in  cases  of  general  average,  and  the  doc- 
trine now  under  discussion  originated  in  the  law  of  aver- 
age.10 It  is  believed,  therefore,  that  it  will  finally  be  set- 
tled as  the  law  that  contribution  may  be  enforced  in  an  ad- 
miralty proceeding,  probably  in  rem,  and  certainly  in  per- 
sonam, as  between  the  owners  of  two  colliding  ships  where 
one  had  been  compelled  to  pay  more  than  his  share.  It 
seems  a  necessary  corollary  from  the  doctrine  that  a  decree 
is  for  half  against  each  with  a  remedy  over,  thus  making  it  a 
case  where  one  is  necessarily  surety  for  the  other  in  case 
of  a  deficit.11 

»  Ante,  p.  142. 

io  Ante,  p.  47. 

ii  Since  the  above  was  written,  The  Mariska  has  been  reversed, 
and  an  independent  libel  in  rem  for  contribution  sustained  (C.  C. 
A.)  107  Fed.  981).  But  the  court  places  it  on  the  ground  of  subro- 
gation to  libelant,  rather  than  contribution  between  the  two  vessels. 


2S6  DAMAGES    IN    COLLISION    CASES.  (Ch.    14 


MEASURE  OF  DAMAGES. 

162.  The  damages  assessable  in  collision  cases  are 

those  which  are  the  natural  and  proximate 
result  of  the  collision. 

This  subject  must  be  considered— First,  in  reference  to 
the  cases  where  the  loss  is  total ;  second,  in  reference  to  the 
cases  where  the  loss  is  partial ;  third,  what  damages  are  prox- 
imate or  remote. 

SAME— WHEN  LOSS  TOTAL. 

163.  If  the  loss  is   total,  the   amount   recoverable 

by  the  vessel  owner  is  the  market  value  of 
the  vessel  at  the  time  of  the  collision,  if 
that  is  ascertainable,  and  her  net  freight 
for  the  voyage.1 

The  net  freight  allowed  in  cases  of  total  loss  is  simply  the 
net  freight  for  the  voyage  broken  up.  Profits  on  a  future 
charter,  not  entered  upon,  are  too  remote,  and  are  not  re- 
coverable.2 

In  the  case  of  The  Kate,3  the  vessel  was  on  her  way  to 
perform  a  charter  party  when  she  was  lost.  The  court  rath- 
er varied  the  general  rule  by  permitting  recovery  of  her  val- 
ue at  the  end  of  the  voyage,  and  the  profit  under  that  charter 
party,  as  it  had  already  been  entered  upon.  On  the  other 
hand,  in  the  case  of  The  Hamilton  4  the  value  of  the  vessel 

§  153.  i  THE  BALTIMORE,  8  Wall.  377,  19  L.  Ed.  463;  The  Laura 
Lee  (D.  C.)  24  Fed.  483;  Fabre  v.  Steamship  Co.,  3  C.  C.  A.  534,  53 
Fed.  288;  THE  UMBRIA,  1G6  U.  S.  404.  17  Sup.  Ct.  610,  41  L.  Ed. 
1053. 

2  THE  UMBRIA,  166  U.  S.  404,  17  Sup.  Ct.  610,  41  L.  Ed.  1053; 
The  Kate  [1899]  Prob.  165. 

s  [1899]  Prob.  165. 

*  (D.  C.)  95  Fed.  844. 


§    154)  MEASURE    OF    DAMAGES.  287 

at  the  beginning  of  the  voyage  was  allowed,  and  interest 
from  that  date,  but  not  the  profits  of  the  charter  party  which 
she  then  had,  though  she  had  entered  upon  it. 

In  case  of  a  total  loss  of  cargo,  the  value  recoverable  is 
the  value  at  place  of  shipment,  with  all  expenses  added ;  but, 
if  the  loss  is  only  partial,  the  net  values  saved  must  be  cred- 
ited.5 

The  mere  fact  that  a  vessel  is  sunk  does  not  necessarily 
make  the  loss  a  total  one.  The  owner  must  at  least  make 
some  effort  to  find  out  whether  she  can  be  saved  or  not,  but, 
if  he  shows  an  unsuccessful  effort  to  induce  salvors  to  raise 
her,  it  at  least  shifts  to  the  respondent  the  burden  to  show 
that  the  loss  was  total.' 


SAME— WHEN  LOSS  PARTIAL. 

154.  In  case  of  a  partial  loss,  the  amount  recover- 
able is  the  cost  of  saving  the  vessel,  the 
repair  and  expense  bills  caused  by  the  col- 
lision, and  a  reasonable  allowance  for  the 
loss  of  the  use  of  the  vessel  while  being  re- 
paired. 

There  is  usually  but  little  difficulty  in  settling  the  items  for 
actual  repairs.  The  fight  generally  turns  on  the  amount  that 
should  be  allowed  for  the  loss  of  the  vessel's  use,  or  demur- 
rage, as  it  is  frequently,  though  inaccurately,  called. 

The  sum  to  be  allowed  is  the  actual  loss  caused  to  the 
owner  by  being  deprived  of  his  vessel.  This  is  a  question 
of  fact,  and  is  often  difficult  of  ascertainment. 

The  demurrage  rate  specified  in  a  bill  of  lading  or  charter 

»  The  Umbria,  8  C.  C.  A.  ISM,  59  Fed.  489. 

«  The  Nonnandie  <D.  C.)  40  Fed.  590;  Id.  (D.  C.)  43  Fed.  151;  The 
B.  A.  Bamill  iD.  C.)  100  Fed.  509;  The  Des  Moines,  154  U.  S.  581,  14 
Sup.  Ct.  1168,  20  L.  Ed.  82L 


288 


DAMAGES    IN    COLLISION    CASES.  (Ch.   14  - 


party  is  not  the  measure  of  damages,  though  it  may  be  com- 
petent evidence.1 

If  the  vessel  is  actually  under  charter,  the  amount  pay- 
able per  day  is  strong  evidence  of  her  value.2 

When,  however,  the  vessel  is  being  operated  by  her  own- 
er, the  method  of  fixing  the  rate  varies  greatly. 

In  The  Potomac,3  a  vessel  engaged  in  a  particular  busi- 
ness was  allowed  the  daily  average  of  her  net  profits  for  the 
season. 

In  such  cases  the  rate  differs  from  that  in  case  of  total 
loss,  for  under  partial  loss  cases  the  future  profits  on  a 
charter  may  be  allowed.4 

Where  no  charter  rate  can  be  fixed,  the  courts  hold  that 
one  good  way  of  fixing  the  damage  is  to  take  the  vessel's 
average  earnings  about  the  time  of  the  collision.6 

A  company  which  keeps  a  spare  boat  can  still  recover  for 
the  loss  of  use  of  their  steamer,  though  the  spare  boat  took 
its  place.6 

As  these  damages  are  allowed -simply  to  make  up  to  the 
owner  any  pecuniary  loss  to  which  he  may  be  put  by  being 
deprived  of  the  use  of  his  vessel,  it  follows  that  no  allowance 
for  loss  of  time  can  be  recovered  in  case  of  a  vessel  not 
operated  for  profit,  but  pleasure, — like  a  private  yacht, — or 
of  vessels  not  in  operation.7 

§  154.     i  The  Hermann,  4  Blatchf.  441,  Fed.  Cas.  No.  6,408. 

2  The  Margaret  J.  Sanford  (C.  C.)  37  Fed.  148. 

8  105  U.  S.  630,  26  L.  Ed.  1194. 

*  The  Argentine),  14  App.  Cas.  519;  THE  UMBRIA,  166  U.  S.  421, 
17  Sup.  Ct.  610,  41  L.  Ed.  1053. 

b  THE  CONQUEROR.  166  U.  S.  110,  17  Sup.  Ct.  510,  41  L.  Ed.  937; 
The  William  H.  Bailey  (D.  C.)  103  Fed.  799. 

e  The  Cayuga,  14  Wall.  270,  20  L.  Ed.  828;  The  Mediana  [1899] 
Prob.  127;    Id.  [1900]  App.  Cas.  113. 

7  THE  CONQUEROR,  166  TJ.  S.  110,  17  Sup.  Ct.  510,  41  L.  Ed.  937; 
The  Saginaw  (D.  C.)  95  Fed.  703;  The  Wm.  M.  Hoag  (D.  0.)  101 
Fed.  846. 


§    154)  MEASUKE    OF    DAMAGES.  280 

On  the  other  hand,  in  the  case  of  The  Greta  Holme,8  the 
trustees  of  a  municipality  which  kept  a  steam  dredge  for 
their  sole  use  were  allowed  to  recover  for  the  time  lost  by  it 
in  consequence  of  a  collision  damage,  though  they  could  not 
prove  any  direct  pecuniary  loss.  They  did  prove,  however, 
that  the  filling  up  during  the  dredge's  absence  from  work 
entailed  additional  dredging  afterwards. 

Interest  on  the  value  from  the  date  of  collision  in  case  of 
total  loss,  and  on  each  item  in  case  of  partial  loss,  is  usually 
allowed,  though  its  allowance  is  a  matter  of  judicial  discre- 
tion.9 

In  estimating  the  cost  of  repairs,  the  fact  that  new  repairs 
make  the  vessel  more  valuable  than  she  was  before,  if  these 
new  repairs  were  necessary  to  restore  her,  does  not  cause 
any  deduction.  The  rule  of  one-third  off  new  for  old,  which 
has  been  adopted  by  the  insurance  companies,  does  not  ap- 
ply in  collision  cases.10 

It  is  often  a  difficult  question  of  fact  how  far  the  recovery 
may  extend  when  the  vessel  is  old,  and  it  is  necessary  to  put 
in  a  good  deal  of  work  on  each  side  of  the  natural  wound 
in  order  to  make  the  repairs  hold.  As  a  rule,  the  cost  of 
repairing  adjacent  parts  is  not  recoverable,  provided  those 
adjacent  parts  were  not  in  good  condition.  If  the  vessel  is 
in  good  condition,  and  the  injury  is  such  that  repairs  to  ad- 
jacent parts  are  also  needed,  it  would  seem  that  they  would 
be  recoverable.11 

«  [1897]  App.  Cas.  596. 

»  The  Albert  Dumois,  177  U.  S.  240,  20  Sup.  Ct.  595,  44  L.  Ed.  751. 
io  THE  BALTIMORE,  8  Wall.  377,  19  L.  Ed.  463. 
n  The  John  R.  Penrose  (D.  C.)  86  Fed.  696;   The  Providence,  38 
C.  C.  A.  670,  98  Fed.  133. 
HUGHES.AD.— 19 


290  DAMAGES    IN    COLLISION    CASES.  (Ch.    14  - 

REMOTENESS    OF   DAMAGES— SUBSEQUENT    STOHM. 

166.  If  a  vessel  partially  injured  is  so  crippled  by 
a  collision  as  to  be  lost  in  a  subsequent 
storm,  which  she  could  otherwise  have 
weathered,  that  is,  in  law,  considered  as 
proximately  arising  from  the  collision. 

The  damages  recoverable,  as  in  common-law  cases,  are 
only  those  proximately  caused  by  the  collision.  This  is 
often  a  difficult  question,  and  the  decisions  are  not  always 
enlightening.  For  instance,  in  the  common-law  case  of 
Memphis  &  C.  R.  Co.  v.  Reeves,1  tobacco  which  did  not  go 
forward  as  fast  as  it  might  have  done  was  caught  in  a  flood, 
which  it  would  otherwise  have  escaped.  The  court  held  that 
the  proximate  cause  was  the  flood. 

In  The  Leland,2  a  vessel  injured  in  collision  while  making 
her  way  to  port  was  caught  in  a  storm,  and,  in  consequence 
of  her  crippled  condition,  was  totally  wrecked.  It  was  con- 
tended that  the  proximate  cause  of  her  main  damage  was 
the  storm,  but  the  court  held  that  it  was  the  collision,  and 
that  the  vessel  at  fault  was  liable  for  the  entire  loss.  In  The 
City  of  Lincoln,8  the  compass,  charts,  log,  and  log  glass  of 
a  bark  were  lost  in  a  collision.  On  making  her  way  to  port, 
she  grounded  on  account  of  the  lack  of  these  requisites  to 
navigation.  The  court  held  that  the  additional  damage  re- 
ceived in  grounding  was  due  proximately  to  the  collision, 
and  recoverable.* 

§  155.     i  10  Wall.  176,  19  L.  Ed.  909. 
2  (D.  C.)  19  Fed.  771. 
s  15  Prob.  Div.  15. 

*  See,  also,  Boutin  v.  Rudd,  27  C.  C.  A.  526,  82  Fed.  685;  The 
Onoko  (D.  C.)  100  Fed.  477;  Id.  (C.  0.  A.)  107  Fed.  984. 


§    J  56)  REMOTENESS    OF   DAMAGES.  291 


SAME—DOCTRINE  OF  ERROR  IN  EXTREMIS. 

156.  If  a  vessel,  by  her  negligence,  places  the  other 
in  a  perilous  situation,  and  the  latter,  in 
the  excitement,  takes  the  -wrong  course,  the 
negligence  of  the  first  is  considered  the  prox- 
imate cause. 

This  is  known  as  the  "doctrine  of  error  in  extremis,"  and 
applies,  as  is  well  known,  to  all  cases  of  negligence.  The 
reason  is  that  it  is  not  right  to  expect  superhuman  presence 
of  mind,  and  therefore,  if  one  vessel  has,  by  wrong  maneu- 
vers, placed  another  ship  in  a  position  of  extreme  danger, 
that  other  ship  will  not  be  held  to  blame  if  she  has  done 
something  wrong,  and  has  not  been  maneuvered  with  per- 
fect skill  and  presence  of  mind.1 

This  doctrine  has  been  enunciated  in  many  American  cas- 
es. Illustrations  may  be  found  in  the  cases  which  hold  that 
a  steamer  must  not  run  so  close  to  a  sailing  vessel  as  to 
cause  her  alarm  and  trepidation.2 

It  applies  just  as  well,  however,  to  steamers.8 

But  the  vessel  which  appeals  to  this  doctrine  must  show 
that  she  was  not  in  fault  herself.  She  cannot  claim  to  be 
free  from  negligence  at  the  last  moment  on  account  of  ex- 
citement, if  her  previous  maneuvers  have  brought  about  the 
critical  situation.* 

§  156.  >  The  Bywell  Cnstle.  4  Prob.  Div.  219;  THE  NICHOLS, 
7  Wall.  650,  19  L.  Ed.  157;  The  Maggie  J.  Smith,  123  U.  S.  349,  8 
Sup.  Ct.  159,  31  L.  Ed.  175. 

2  The  Carroll,  8  Wall.  302,  19  L.  Ed.  392;  THE  LUCILLE,  15  Wall. 
676,  21  L.  Ed.  247;  The  Nacoochee,  137  U.  S.  330,  11  Sup.  Ct.  122,  34 
L.  Ed.  087;   ante,  p.  243. 

a  The  Blue  Jacket,  144  U.  S.  371,  12  Sup.  Ct.  711,  36  L.  Ed.  469. 

4  THE  ELIZABETH  JONES,  112  U.  S.  514,  5  Sup.  Ct.  468.  28  L 
Ed,  812. 


292  VESSEL    OWNERSHIP.  (Ch.   15 


CHAPTER  XV. 

OF   VESSEL  OWNERSHIP   INDEPENDENT  OF  THE  LIMITED 
LIABILITY  ACT. 

157.     Method  by  Which  Title  to  Vessels  may  be  Acquired  or  Trans- 
ferred. 
15S.     Relation  of  Vessel  Owners  Inter  Sese. 
159.     Relation  of  Vessel  Owners  as  Respects  Third  Parties. 

METHOD    BY    WHICH    TITLE    TO    VESSELS   MAY   BE 
ACQUIRED  OR  TRANSFERRED. 

157.  A  bill  of  sale  is  necessary  for  an  American  reg- 
istry, but  not  for  the  mere  transfer  of  title. 

A  vessel  is  a  mere  piece  of  personal  property,  and  sale 
accompanied  by  delivery  will  transfer  the  title  as  between 
vendor  and  vendee.  Section  4170  of  the  Revised  Statutes 
of  the  United  States  provides  : 

"Whenever  any  vessel,  which  has  been  registered,  is,  in 
whole  or  in  part,  sold  or  transferred  to  a  citizen  of  the  Unit- 
ed States,  or  is  altered  in  form  or  burden,  by  being  length- 
ened or  built  upon,  or  from  one  denomination  to  another, 
by  the  mode  or  method  of  rigging  or  fitting,  the  vessel  shall 
be  registered  anew,  by  her  former  name,  according  to  the 
directions  hereinbefore  contained,  otherwise  she  shall  cease 
to  be  deemed  a  vessel  of  the  United  States.  The  former 
certificate  of  registry  of  such  vessel  shall  be  delivered  up  to 
the  collector  to  whom  application  for  such  new  registry  is 
made,  at  the  time  that  the  same  is  made,  to  be  by  him  trans- 
mitted to  the  register  of  the  treasury,  who  shall  cause  the 
same  to  be  canceled.  In  every  such  case  of  sale  or  trans- 
fer, there  shall  be  some  instrument  of  writing,  in  the  nature 
of  a  bill  of  sale,  which  shall  recite,  at  length,  the  certificate ; 
otherwise  the  vessel  shall  be  incapable  of  being  so  registered 
anew." 


§    157)  METHODS    OF    TRANSFERRING    VESSELS.  293 

It  is  held,  however,  under  this,  that  the  only  effect  of  not 
having  the  required  bill  of  sale,  or  of  having  a  bill  of  sale 
without  the  certificate  set  out  in  it,  is  to  cause  the  vessel 
to  forfeit  its  rights  to  American  registry.1 

In  order  to  make  this  title  binding  as  against  third  par- 
ties, it  must  be  recorded  in  the  custom  house.  Section  4192 
of  the  United  States  Revised  Statutes  provides : 

"No  bill  of  sale,  mortgage,  hypothecation,  or  conveyance' 
of  any  vessel,  or  part  of  any  vessel,  of  the  United  States, 
shall  be  valid  against  any  person  other  than  the  grantor  or 
mortgagor,  his  heirs  and  devisees,  and  persons  having  ac- 
tual notice  thereof,  unless  such  bill  of  sale,  mortgage,  hy- 
pothecation, or  conveyance  is  recorded  in  the  office  of  the 
collector  of  the  customs  where  such  vessel  is  registered  or 
enrolled.  The  lien  by  bottomry  on  any  vessel,  created  dur- 
ing her  voyage,  by  a  loan  of  money  or  materials  necessary  to 
repair  or  enable  her  to  prosecute  her  voyage,  shall  not,  how- 
ever, lose  its  priority,  or  be  in  any  way  affected  by  the  pro- 
visions of  this  section." 

If  it  is  recorded  according  to  this  section,  it  is  binding  as 
to  third  parties,  even  though  not  indexed.2 

This  statute  has  been  held  to  be  constitutional  by  the 
United  States  supreme  court.3 

The  place  where  the  vessel  is  registered  or  enrolled  is  reg- 
ulated by  section  4141  of  the  Revised  Statutes,  which  says : 

"Every  vessel,  except  as  is  hereinafter  provided,  shall  be 
registered  by  the  collector  of  that  collection-district  which 
includes  the  port  to  which  such  vessel  shall  belong  at  the 
time  of  her  registry;  which  port  shall  be  deemed  to  be  that 
at  or  nearest  to  which  the  owner,  if  there  be  but  one,  or,  if 
more  than  one,  the  husband  or  acting  and  managing  owner 
of  such  vessel,  usually  resides." 

i  157.  1  The  Amelie,  6  Wall.  18,  18  L.  Ed.  806;  De  Wolf  v.  Har- 
ris. 4  Mason,  515,  Fed.  Cas.  No.  4.221. 

2  The  W.  B.  Cole  (C.  C.i  49  Fed.  587;   Id.,  8  C.  C.  A.  78,  59  Fed.  182. 
»  WHITE'S  BANK  v.  SMITH,  7  Wall.  046,  1!)  L.  Ed.  211. 


29-J  VESSEL    OWNERSHIP.  (Ch.    15 

These  statutes,  above  quoted,  which  in  terms  apply  to  reg- 
istered vessels,  are  made  to  apply  to  enrolled  vessels  by 
section  4312  of  the  Revised  Statutes,  which  says: 

"In  order  for  the  enrollment  of  any  vessel,  she  shall  pos- 
sess the  same  qualifications,  and  the  same  requirements  in 
all  respects  shall  be  complied  with,  as  are  required  before 
registering  a  vessel;  and  the  same  powers  and  duties  are 
conferred  and  imposed  upon  all  officers  respectively,  and  the 
same  proceedings  shall  be  had,  in  enrollment  of  vessels,  as 
are  prescribed  for  similar  cases  in  registering;  and  vessels 
enrolled,  with  the  masters  or  owners  thereof,  shall  be  sub- 
ject to  the  same  requirements  as  are  prescribed  for  regis- 
tered vessels." 

These  bills  of  sale  are  required  not  only  to  be  recorded, 
but  they  must  set  out  exactly  the  interest  of  each  person 
selling  and  each  person  purchasing.4 

RELATION  OP  VESSEL  OWNERS  INTER  SESE. 

158.  Part  owners  of  a  vessel,  in  the  absence  of 
special  agreement,  are  tenants  in  common, 
not  partners. 

The  presumption  is  in  favor  of  a  tenancy  in  common  and 
against  a  partnership,  though  the  latter  may,  of  course, 
exist  by  special  agreement.  This  has  been  settled  law,  both 
in  England  and  America,  for  a  long  time.1 

The  mere  fact  that  a  vessel  is  run  on  shares  does  not  con- 
stitute the  part  owners  a  partnership.2 

Part  owners  have  no  lien  as  against  each  other  in  case 
one  pays  more  than  his  share  of  the  expenses  or  debts,  even 

4  Sections  4192-4196. 

§  158.  i  The  Sylph,  Fed.  Cas.  No.  1,791;  Revens  v.  Lewis,  2 
Paine,  202,  Fed.  Cas.  No.  11.711;  SPEDDFjN  v.  KOENIG,  24  C.  C. 
A.  189,  78  Fed.  504. 

a  The  Daniel  Kaine  (D.  C)  3o  Fed.  7S5. 


§.    158)  RELATION    OF    VESSEL    OWNERS    INTER    SESE.  295 

though  the  one  so  paying  may  be  the  ship's  husband.  This 
question  was  long  a  subject  of  debate  in  the  courts,  but  the 
above  may  be  considered  as  practically  the  settled  doctrine 
now.3 

In  such  case,  however,  when  he  has  made  necessary  ad- 
vances for  the  common  benefit,  under  express  or  implied 
authority  to  do  so,  he  may  compel  contribution  from  the 
owners  for  such  advances ;  but  this  is  a  mere  matter  of  ac- 
counts, and  there  is  no  jurisdiction  in  admiralty  to  maintain 
such  a  suit.4 

The  complete  separation  of  vessel  and  owner  in  admiralty 
is  forcibly  illustrated  by  the  fact  that  a  part  owner,  who  hap- 
pens to  be  engaged  in  the  business  of  furnishing  repairs  or 
supplies  to  vessels,  may  libel  his  vessel  for  such  repairs  and 
supplies  so  furnished,  and  may  assert  a  lien  against  his  other 
part  owners  or  their  assignee,  but  not  to  the  detriment  of 
creditors  of  the  vessel  itself.  This  doctrine  must  be  care- 
fully distinguished  from  the  doctrine  announced  in  the  last 
paragraph.  For  a  mere  balance  of  accounts  there  is  no  right 
of  action  in  admiralty,  but,  if  a  part  owner  of  a  vessel  hap- 
pens to  keep  a  machine  shop,  and  does  work  upon  the  vessel 
on  the  credit  of  the  vessel,  there  is  no  reason  why  he  should 
not  be  allowed  to  libel  the  vessel,  and  to  assert  such  a  mar- 
itime cause  of  action  against  his  other  part  owners.  But, 
when  the  vessel  comes  to  be  sold,  if  there  are  other  credit- 
ors, it  would  be  inequitable  to  allow  the  part  owner,  who 
himself  may  be  personally  bound,  to  assert  a  lien  against  his 
own  creditors ;  and  therefore  the  doctrine  is  limited  to  an 
assertion  of  it  in  subordination  to  the  claims  of  the  other 
creditors  on  the  boat.6 

•  THE  LARCH.  2  Curt.  427,  Fed.  Cas.  No.  8,085;  The  Daniel 
Kaine  (D.  C.)  35  Fed.  785. 

•  THE  LABCH,  2  Curt.  427,  Fed.  Cas.  No.  8.085;  The  Orleans.  11 
Pet.  175.  9  L.  ErL  077. 

•  THE  CHARLES  HBMJE,  5  Hughes,  359,  Fed.  Cas.  No.  11,047a; 


2'J6  VESSEL    OWNERSHIP.  (Ch.    15 

There  is  nothing  in  the  mere  relation  of  part  owners  which 
makes  one  an  agent  for  the  other  any  more  than  there  is  in 
the  relation  of  tenants  in  common.  Hence  one  part  owner, 
in  the  absence  of  some  authority,  express  or  implied,  cannot 
bind  the  other  part  owner  for  the  debts  of  the  vessel.  If 
cases  exist  in  which  the  other  part  owner  has  been  held 
bound,  it  will  be  found  that  there  was  some  course  of  deal- 
ing or  other  circumstance  tending  to  show  express  or  im- 
plied authority.6 

Disputes  often  arise  between  part  owners  as  to  the 
method  of  using  their  vessel.  If  they  cannot  agree,  the 
majority  owner  can  take  the  vessel,  and  use  her,  and  in  such 
case  he  will  be  entitled  to  the  profits  of  the  voyage,  but  the 
part  owner  may  require  him  to  give  security  for  the  protec- 
tion of  his  interest  in  the  vessel  against  loss,  and  admiralty 
has  jurisdiction  of  a  libel  to  compel  the  giving  of  such  se- 
curity.7 

In  such  case  a  minority  owner  who  is  protected  by  such  a 
bond,  and  who  has  refused  to  join  in  the  voyage,  cannot 
claim  a  share  in  its  profits,  as  he  has  had  none  of  the  risk.8 

In  cases  of  disagreement  the  majority  owner  has  the  right 
to  the  use  of  the  vessel,  subject  to  the  right  of  the  minority 
to  require  bond ;  but,  if  the  majority  will  not  use  the  vessel 
at  all,  then  the  minority  can  use  her  on  giving  a  similar 
bond  to  the  majority.  The  reason  of  this  is  the  principle 
of  public  policy  that  vessels  should  be  used,  and,  while  the 
majority  in  case  of  difference  as  to  the  precise  voyage  or  the 

The  West  Friesland,  Swab.  454;  Learned  v.  Brown,  36  O.  O.  A.  524, 
94  Fed.  S76. 

«Brodie  v.  Howard,  17  O.  B.  (84  E.  C.  L.)  109;  FRAZEK  v. 
CTJTHBERTSON,  6  Q.  B.  Div.  98. 

t  Coyne  v.  Caples  (D.  C.)  8  Fed.  638;  The  Betsina,  Fed.  Cas.  No. 
14,230. 

s  The  Marengo,  1  Low.  52,  Fed.  Cas.  No.  9,065;  Head  v.  Manu- 
facturing Co.,  113  U.  S.  9,  5  Sup.  Ct.  447,  28  L.  Ed.  889. 


§    158)         RELATION    OF    VESSEL    OWNERS    INTER    SESE.  297 

precise  method  of  use  can  control,  they  cannot  control  it  so 
far  as  to  require  the  vessel  to  be  laid  up.9 

Although  admiralty  does  not  have  jurisdiction  to  decree  a 
sale  of  a  vessel  for  mere  purpose  of  partition  where  the  in- 
terests in  the  vessel  are  unequal, — for  in  that  case  the  ma- 
jority can  rule, — yet,  if  the  interests  are  equal,  and  the  equal 
interests  disagree  as  to  the  method  of  employment  of  the 
vessel,  then  in  that  case  neither  can  compel  the  other  to 
give  way,  and  admiralty  has  jurisdiction  to  decree  a  sale  of 
the  vessel.19 

On  the  same  principle  that  the  majority  rules,  a  majority 
may  remove  the  master  of  the  vessel  at  any  time,  even  with- 
out cause,  and  even  though  he  is  part  owner;  but,  if  they 
remove  him  prior  to  the  time  which  they  had  agreed  to  keep 
him,  or  in  any  way  break  their  contract  with  him,  of  course 
they  are  liable  to  an  action  for  damages.  Their  power  of 
removal,  however,  seems  clear,  except  when  there  is  a  writ- 
ten agreement  to  the  contrary.  On  this  subject  section 
4250  of  the  Revised  Statutes  says: 

"Any  person  or  body  corporate  having  more  than  one- 
half  ownership  of  any  vessel  shall  have  the  same  power  to 
remove  a  master,  who  is  also  part  owner  of  such  vessel,  as 
such  majority  owners  have  to  remove  a  master  not  an  own- 
er. This  section  shall  not  apply  where  there  is  a  valid  writ- 
ten agreement  subsisting,  by  virtue  of  which  such  master 
would  be  entitled  to  possession,  nor  in  any  case  where  a 
master  has  possession  as  part  owner,  obtained  before  the 
ninth  day  of  April,  eighteen  hundred  and  seventy-two."  " 

•  The  Betslna,  Fed.  Cas.  No.  14,230;  The  Orleans,  11  Pet.  175,  9 
L.  Ed.  677. 

10  The  Ocean  Belle,  6  Ben.  253,  Fed.  Cas.  No.  10,402;  The  Betsina, 
Fed.  Cas.  No.  14,236;  Coyne  v.  Caples  (D.  C.)  8  Fed.  638;  Head  v. 
Manufacturing  Co.,  113  U.  S.  9,  23,  5  Sup.  Ot.  447,  28  L.  Ed.  889. 

«  The  Lizzie  Merry,  10  Ben.  140,  Fed.  Cas.  No.  8,423;  Montgomery 
T.  Wharton,  Fed.  Cas.  No.  9,737;  Same  v.  Henry,  1  Dall.  49,  1  L.  Ed. 
32,  1  Am.  Dec.  223;   The  Eliza  B.  Emory  (C.  C.)   I  Fed.  342. 


2\ 18  VESSEL    OWNERSHIP.  (Ch.    15 

In  disputes  with  vessel  owners  admiralty  takes  cognizance 
only  of  legal  titles,  not  of  equitable.18 

RELATION  OF  VESSEL  OWNERS  AS  RESPECTS  THIRD 

PARTIES. 

159.  Vessel  owners  are  liable  in  solido  for  the  debts 
or  torts  of  the  vessel  incurred  in  the  natural 
course  of  business  by  parties  holding  the  re- 
lation of  agent  to  such  vessel  owners. 

This  also  is  a  long-settled  principle  of  English  and  Amer- 
ican law.1 

The  parties  who  are  usually  the  agents  of  the  vessel  are 
the  master  and  the  managing  owner.  These  are  frequently 
combined  in  the  same  person,  and  their  powers  are  substan- 
tially the  same.  They  may  bind  the  owners  for  debts  in  the 
usual  and  natural  employment  of  the  vessel. 

A  clear  statement  of  the  powers  of  the  ship's  managing 
owner  (which  is  practically  another  term  for  the  ship's  hus- 
band) is  set  out  in  volume  I,  §  428,  of  Bell's  Commentaries, 
which  enumerates  them  as  follows,  and  also  the  limitation  on 
his  powers : 

"(1)  To  see  to  the  proper  outfit  of  the  vessel,  in  the  re- 
pairs adequate  to  the  voyage,  and  in  the  tackle  and  furni- 
ture necessary  for  a  seaworthy  ship.  (2)  To  have  a  proper 
master,  mate,  and  crew  for  the  ship,  so  that  in  this  respect 
it  shall  be  seaworthy.  (3)  To  see  to  the  due  furnishing  of 
provisions  and  stores,  according  to  the  necessities  of  the  voy- 
age. (4)  To  see  to  the  regularity  of  all  the  clearances  from 
the  custom  house,  and  the  regularity  of  the  registry.     (5) 

12  The  Eclipse,  135  U.  S.  599,  10  Sup.  Ot.  873,  34  L.  Ed.  269;  The 
Robert  R.  Kirkland  (D.  C.)  92  Fed.  407. 

§  159.  1  Thompson  v.  Finden,  4  Car.  &  P.  158,  19  E.  C.  L.  320;  The 
Nestor,  1  Smnu.  73,  Fed.  Cas.  No.  10,120;  The  Pilot,  2  Wall.  Jr.  592, 
Fed.  Cas.  No.  5,109. 


§    159)       RELATION  OF  VESSEL  OWNERS  TO  THIRD  PARTIES.  299 

To  settle  the  contracts,  and  provide  for  the  payment  of  the 
furnishings  which  are  requisite  in  the  performance  of  those 
duties.  (6)  To  enter  into  proper  charter  parties,  or  engage 
the  vessel  for  general  freight,  under  the  usual  conditions; 
and  to  settle  for  freight  and  adjust  average  with  the  mer- 
chant. (7)  To  preserve  the  proper  certificates,  surveys,  and 
documents,  in  case  of  future  disputes  with  insurers  or  freight- 
ers, and  to  keep  regular  books  of  the  ship." 

Mr.  Bell  in  treating  of  the  limitations  of  the  powers  of  a 
ship's  husband,  says : 

"(i)  That,  without  special  powers,  he  cannot  borrow  mon- 
ey generally  for  the  use  of  the  ship,  though  he  may  settle  the 
accounts  of  the  creditors  for  furnishings,  or  grant  bills  for 
them,  which  will  form  debts  against  the  concern,  whether  he 
has  funds  in  his  hands  or  not,  with  which  he  might  have  paid 
them.  (2)  That,  although  he  may,  in  the  general  case,  levy 
the  freight,  which  is,  by  the  bill  of  lading,  payable  on  the  de- 
livery of  the  goods,  it  would  seem  that  he  will  not  have  pow- 
er to  take  bills  for  the  freight,  and  give  up  the  possession 
and  lien  over  the  cargo,  unless  it  has  been  so  settled  by  char- 
ter party,  or  unless  he  has  special  authority  to  give  such 
indulgence.  (3)  That,  under  general  authority  as  ship's  hus- 
band, he  has  no  power  to  insure,  or  to  bind  the  owners  for 
premiums ;  this  requiring  a  special  authority.  (4)  That,  as 
the  power  of  the  master  to  enter  into  contracts  of  affreight- 
ment is  superseded  in  the  port  of  the  owners,  so  is  it  by  the 
presence  of  the  ship's  husband,  or  the  knowledge  of  the  con- 
tracting parties    that  a  ship's  husband  has  been  appointed." 

Accordingly,  it  has  been  held  that  his  powers  do  not  ex- 
tend so  far  as  to  permit  him  to  bind  the  owners  for  the  cargo 
purchased  for  the  vessel,  that  not  being  considered  as  a  ne- 
cessity in  the  course  of  business.2 

It  is  also  well  settled  that  the  managing  owner  cannot 
bind  the  others  in  the  home  port  unless  express  authority  be 

»  The  Ole  Oleson  (C.  C.)  20  Fed.  384. 


300  VESSEL    OWNERSHIP.  (Ch.    15- 

shown,  for  the  basis  of  his  power  is  the  necessity  of  the  ves- 
sel, and  in  the  home  port  the  owners  can  easily  be  consulted.3 

Nor  can  he  bind  minority  owners  who  have  dissented  from 
the  use  of  the  vessel  for  that  particular  voyage,  for,  as  they 
cannot,  in  such  case,  share  in  the  profits,  it  would  be  inequit- 
able to  expect  them  to  bear  the  costs.4 

The  debts  for  which  part  owners  may  be  bound  by  their 
agents  are  simply  those  things  included  in  the  term  "neces- 
saries." In  another  connection  the  question  as  to  what  con- 
stitutes "necessaries"  which  a  captain  may  order  for  his 
vessel  has  been  discussed,  and  the  same  test  applies  here. 
Reference  is  made  to  that  discussion.6 

The  owners  are  liable  not  only  for  contract  debts,  but  also 
for  the  torts  of  the  master  in  the  line  of  his  duty,  not  for 
those  outside  the  line  of  his  duty.  For  instance,  in  The 
Waldo  8  the  owners  were  held  liable  for  injury  to  goods  on 
a  vessel  while  in  transit,  but  not  for  damages  received  by 
their  sale  and  disposition  after  they  had  been  taken  from  tfie 
vessel ;  the  master,  as  to  these  latter  transactions,  being  con- 
sidered the  agent  of  the  shippers,  and  not  of  the  vessel  own- 
ers. 

The  mere  fact  that  a  person  appears  on  the  papers  of  the 
vessel  as  owner  does  not  make  him  liable.  As  seen  above, 
he  is  not  liable  if  he  has  expressly  dissented  from  the  voy- 
age. In  addition,  if  the  bill  of  sale  or  title  which  he  holds  is 
a  mere  security,  as  a  mortgage  in  disguise,  and  he  has  not 
the  possession  of  the  vessel,  he  is  not  liable.  The  question 
reduces  itself  to  one  of  agency.     In  such  case,  as  he  has  not 

«  SPEDDEN  v.  KOENIG,  24  C.  C.  A.  189,  78  Fed.  504;  Woodall  v. 
Dempsey  (D.  C.)  100  Fed.  653;  Besse  v.  Hecht  (D.  C.)  85  Fed.  677; 
Helme  v.  Smith,  7  Bing.  709,  20  E.  C.  L.  300. 

*  FRAZER  v.  CUTHBERTSON,  6  Q.  B.  Div.  93;  The  Vindobala, 
13  Prob.  Div.  42;  Id.,  14  Prob.  Div.  50. 

«  Ante,  pp.  96,  97. 

a  The  Waldo,  2  Ware,  165,  Fed.  Cas.  No.  17,056.  See,  also,  Taylor 
v.  Brigham,  3  Woods,  377,  Fed.  Cas.  No.  13,781;  ante,  p.  192,  §  106, 
note  1. 


§    159)       RELATION  OF  VESSEL  OWNERS  TO  THIRD  PARTIES.         301 

possession,  he  has  not  the  power  of  appointment  or  con- 
trol, and  the  parties  operating  the  vessel  are  not  his  agents. 
Even  if  the  vessel  is  run  on  shares  by  the  master,  that  does 
not  constitute  him  their  agent.7 


»  Myers  v.  Willis,  17  0.  B.  (84  B.  C.  L.)  77;  Webb  v.  Peirce,  1 
Curt.  104,  Fed.  Cas.  No.  17,320;  Davidson  v.  Baldwin,  24  a  C.  A. 
453,  79  Fed.  95. 


>02  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.   16' 


CHAPTER  XVI. 

OP    THE    RIGHTS    AND    LIABILITIES    OF    OWNERS    AS    AF- 
FECTED BY  THE  LIMITED  LIABILITY  ACT. 

160.  History  of  Limitation  of  Liability  in  General. 

161.  History  and  Policy  of  Federal  Legislation. 

1132.  By  Whom  Limitation  of  Liability  may  be  Claimed. 

163.  Against  what  Liabilities  Limitation  may  be  Claimed. 

164.  Privity  or  Knowledge  of  Owner. 

165.  Tbe  Voyage  as  the  Unit. 

166.  Extent  of  Liability  of  Part  Owners. 

167.  Measure  of  Liability — Time  of  Estimating  Values. 
1(58.  Prior  LieDS. 

169.  Damages  Recovered  from  Other  Vessel. 

170.  Freight. 

171.  Salvage  and  Insurance. 

172.  Procedure— Time  for  Taking  Advantage  of  Statute. 

173.  Defense  to  Suit  against  Owner,  or  Independent  Proceeding. 

174.  Method  of  Distribution. 


HISTORY     OF     LIMITATION     OP     LIABILITY     IN 
GENERAL. 

160.  The  limitation  of  owner's  liability  is  an  out- 
growth of  the  modern  maritime  law  and 
codes. 

Under  the  ancient  civil  law  the  owners  were  bound  in 
solido  for  the  liabilities  of  the  ship  arising  out  of  contract, 
and  in  proportion  to  their  respective  interests  for  liabilities 
arising  out  of  tort.  This,  however,  merely  settled  the  ques- 
tion of  proportion  as  between  the  owners,  but  not  the  ques- 
tion of  the  extent  of  their  liability.  There  seems  to  have 
been  no  limit  on  this  as  respects  the  value  of  the  vessel.  But 
the  importance  of  encouraging  maritime  adventures,  espe- 
cially in  the  Middle  Ages,  when  that  was  almost  the  only 
method  of  communication  among  nations,  led  to  the  gradual 


§161)       HISTORY  AND  POLICY  OF  FEDEKAL  LEGISLATION.  303 

adoption,  among  the  maritime  continental  codes,  of  provi- 
sions limiting  the  liability  of  the  owners  to  their  respective 
interests  in  the  ship.  The  greater  frequency  of  maritime 
disasters  in  those  days  of  frail  craft  emphasized  the  need  of 
such  a  provision.  Among  others,  we  find  these  carried  into 
the  famous  marine  Ordonnance  of  Louis  XIV.,  one  provi- 
sion of  which  is  that  the  owners  of  a  ship  shall  be  answerable 

for  the  deeds  of  the  master,  but  shall  be  discharged,  aban- 
doning their  ship  and  freight.1 

In  the  last  century  this  policy  was  partially  adopted  in 

England,  though  their  act  of  limited  liability  was  then,  and 

still  is,  much  less  favorable  to  the  vessel  owner  than  most  of 

the  other  acts. 

The  history  of  the  development  of  this  principle  of  modern 

maritime  law  is  well  summarized  by  Judge  Ware  in  the  case 

of  THE  REBECCA,2  decided  long  before  there  was  any 

federal  statute  on  the  subject. 

HISTORY   AND  POLICY  OF  FEDERAL  LEGISLATION. 

161.  The  federal    statutes  are    sections  4282-4289, 
Rev.  St.,  Act  June  26,  1884,1  and  Act  June 
19,   1886. 2    They  are  designed  to  encourage 
shipping  by  extending  all  possible  protec- 
tion to  vessel  owners. 

In  one  sense  the  Harter  act  is  an  act  limiting  the  liability 
of  owners.  This,  however,  regulates  not  so  much  the  ques- 
tion of  their  liability  in  amount  as  the  question  whether  they 
are  responsible  at  all  or  not.  But  the  acts  immediately  in 
view  in  the  principal  connection  are  rather  those  limiting 
the  amount  of  their  liability  where  some  liability  undoubted- 

«  1G0.     i  30  Fed.  Cas.  1,206. 

2  1  Ware-  (1B8)  L87,  Fed.  Cas.  No.  11,619. 

§  161.     i  2.'i  Stat.  57. 

2  21  Stat  80. 


304  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16  ^ 

lv  exists,  and  not  the  acts  denning  whether  or  not  they  are 
liable  at  all. 

The  first  act  above  mentioned,  now  contained  in  sections 
4282  4289  of  the  Revised  Statutes,  was  passed  on  March  3, 
1851,  and  is  very  similar  to  the  British  statute,  although  in 
many  respects  the  act  itself  and  the  construction  placed  up- 
on it  by  the  courts  is  more  liberal  to  the  vessel  owner. 

Policy  of  the  Act. 

The  policy  of  these  acts  is  well  explained  by  Mr.  Justice 
Bradley  in  the  case  of  NORWICH  &  N.  Y.  TRANSP. 
CO.  v.  WRIGHT,3  a  leading  case  on  the  subject  of  limita- 
tion of  liability.     In  it  he  says : 

"The  great  object  of  the  law  was  to  encourage  shipbuild- 
ing, and  to  induce  capitalists  to  invest  money  in  this  branch 
of  industry.  Unless  they  can  be  induced  to  do  so,  the  ship- 
ping interests  of  the  country  must  flag  and  decline.  Those 
who  are  willing  to  manage  and  work  ships  are  generally 
unable  to  build  and  fit  them.  They  have  plenty  of  hardi- 
ness and  personal  daring  and  enterprise,  but  they  have  lit- 
tle capital.  On  the  other  hand,  those  who  have  capital,  and 
invest  it  in  ships,  incur  a  very  large  risk  in  exposing  their 
property  to  the  hazards  of  the  sea,  and  to  the  management 
of  seafaring  men,  without  making  them  liable  for  addi- 
tional losses  and  damage  to  an  indefinite  amount.  How 
many  enterprises  in  mining,  manufacturing,  and  internal 
improvements  would  be  utterly  impracticable  if  capitalists 
were  not  encouraged  to  invest  in  them  through  corporate 
institutions  by  which  they  are  exempt  from  personal  lia- 
bility, or  from  liability  except  to  a  limited  extent?  The 
public  interests  require  the  investment  of  capital  in  ship- 
building quite  as  much  as  in  any  of  these  enterprises.  And, 
if  there  exist  good  reasons  for  exempting  innocent  ship- 
owners from  liability,  beyond  the  amount  of  their  interest, 
for  loss  or  damage  to  goods  carried  in  their  vessels,  pre- 

«  13  Wall.  104,  20  L.  Ed.  585. 


§    161)       HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION.  305 

cisely  the  same  reasons  exist  for  exempting  them  to  the 
same  extent  from  personal  liability  in  cases  of  collision. 
In  the  one  case  as  in  the  other,  their  property  is  in  the 
hands  of  agents  whom  they  are  obliged  to  employ." 

IAabiUty  for  Fires — "Design  or  Neglect." 

The  first  section  of  this  act  *  does  (contrary  to  the  re- 
maining portion  of  it)  define  certain  circumstances  under 
which  the  question  of  the  responsibility  of  the  vessel  owner 
is  involved,  rather  than  the  question  of  its  extent.  It  pro- 
vides, in  substance,  that  there  shall  be  no  liability  at  all 
for  a  fire  unless  the  fire  is  caused  by  the  design  or  neg- 
lect of  the  owner.  This,  therefore,  furnishes  a  complete 
defense  to  any  liability,  and  not,  as  the  remainder  of  the 
act,  a  method  of  surrendering  an  interest  in  the  vessel  itself 
as  a  means  of  limiting  the  liability. 

The  meaning  of  these  words  "design  or  neglect"  came 
before  the  court  in  the  case  of  Walker  v.  Western  Transp. 
Co.,4  and  the  construction  placed  upon  them  by  the  courts 
is.  in  substance,  that  the  owners  are  exempted,  though  there 
might  be  some  design  or  neglect  of  their  agents  or  em- 
ployes, provided  the  vessel  owner  was  not  guilty  of  any 
personal  design  or  neglect.  In  the  opinion  of  the  court  Mr. 
Justice  Miller  says : 

"It  is  quite  evident  that  the  statute  intended  to  modify  the 
shipowner's  common-law  liability,  for  everything  but  the  act 
of  God  and  the  king's  enemies.  We  think  that  it  goes  so 
far  as  to  relieve  the  shipowner  from  liability  for  loss  by  fire, 
to  which  he  has  not  contributed  either  by  his  own  design  or 
neglect. 

"By  the  language  of  the  first  section  the  owners  are  re- 
leased from  liability  for  loss  by  fire  in  all  cases  not  coming 
within  the  exception  there  made.  The  exception  is  of  cases 
where  the  fire  can  be  charged  to  the  owner's  design  or  the 
owner's  neglect. 

*  Rev.  St.  §  4282.  «  3  Wall.  150,  18  L.  Ed.  172. 

HUGHES.AD.— 20 


306  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.   16  , 

"When  we  consider  that  the  object  of  the  act  is  to  limit 
the  liability  of  owners  of  vessels,  and  that  the  exception  is 
not  in  terms  of  negligence  generally,  but  only  of  negligence 
of  the  owners,  it  would  be  a  strong  construction  of  the  act, 
in  derogation  of  its  general  purpose,  to  hold  that  this  ex- 
ception extends  to  the  officers  and  crews  of  the  vessels  as 
representing  the  owners.  *  *  *  We  are,  therefore,  of 
opinion  that,  in  reference  to  fires  occurring  on  that  class  of 
vessels  to  which  the  statute  applies,  the  owner  is  not  liable 
for  the  misconduct  of  the  officers  and  mariners  of  the  ves- 
sel, in  which  he  does  not  participate  personally." 

The  later  case  of  The  Strathdon  B  involved  an  injury  to 
the  cargo  from  a  heated  flue  in  the  ship.  It  appeared  that 
the  ship  had  been  built  by  reputable  builders.  District 
Judge  Thomas,  in  delivering  the  opinion  of  the  court,  dis- 
cussed these  words  as  follows : 

"Hence  the  shipowners  are  not  liable  for  injury  to  the 
cargo  by  fire,  unless  the  cargo  owner  prove  by  a  prepon- 
derance of  evidence  that  the  fire  was  caused  by  the  design 
or  neglect  of  the  shipowners  touching  some  duty  that  was 
imposed  on  them  personally.  A  strained  meaning  should 
not  be  given  to  the  words  'design  or  neglect.'  The  word 
'design'  contemplates  a  causative  act  or  omission,  done  or 
suffered  willfully  or  knowingly  by  the  shipowner.  It  in- 
volves an  intention  to  cause  the  fire,  or  to  suffer  it  to  be 
caused  by  another.  The  culpability  is  in  the  nature  of  a 
trespass.  It  is  not  understood  that  there  is  any  claim  that 
the  fire  in  question  was  caused  by  such  design  of  the  ship- 
owners. The  word  'neglect'  has  an  opposite  meaning. 
Negligence  involves  the  absence  of  willful  injury,  and  is  an 
unintended  breach  of  duty,  resulting  in  injury  to  the  prop- 
erty or  person  of  another.  Were  the  shipowners  guilty  of 
such  breach  of  duty?     The  duty  was  to  use  due  care  (and 

•  (D.  C.)  89  Fed.  374. 


§    161)       HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION.  307 

it  may  be  assumed  that  a  high  degree  of  care  would  be  re- 
quired) to  furnish  a  donkey  boiler,  if  one  were  furnished  at 
all,  so  related  to  the  other  parts  of  the  ship  that  the  cargo 
carried  in  the  ship  would  not  be  fired,  directly  or  indirectly, 
by  the  action  of  such  a  boiler,  at  least  when  properly  used. 
What  should  suitably  prudent  proposed  shipowners  do  to 
fulfill  this  duty?     If  they  were  not  competent  shipbuilders, 
they  should  engage  persons  of  proper  skill  and  carefulness, 
and  delegate  to  them  the  performance  of  the  duty.     If  the 
duty  could  not  be  delegated  so  as  to  exempt  them  from  lia- 
bility, yet  the  care  and  skill  of  the  builders  would  inure  to 
the  benefit  of  the  shipowners.     *     *     *     If,  now,  the  ship- 
owner has  employed  such  reputable  constructors,  and  if  the 
use  of  the  completed  ship  for  several  years  justify  the  pro- 
priety of  its  arrangement  and  precaution  against  fire,  and  if 
very  skilled  men  pronounce  that  the  work  accords  with  the 
existing  knowledge  of  their  profession,  and  if  no  man  be 
forthcoming  to  declare  otherwise,  why  should  the  shipown- 
ers be  held  to  have  failed  in  skill  or  diligence  ?     Their  care 
and  skill  should  be  equal  to  the  prevailing  knowledge  of  the 
mechanism  which  they  undertake  to  construct  and  use,  and 
to  that  standard  they  have  attained.     If  there  was  any  high- 
er skill  or  ability  existing  at  any  time  before  the  fire,  evi- 
dence of  it  should  have  been  given.     In  the  absence  of  such 
evidence,  and  in  view  of  the   ample  proof  that  what  was 
known  on  the  subject  was  employed  in  the  construction  of 
the  donkey  boiler  and  flue,  the  shipowners  must  be  consid- 
ered  suitably  diligent.     It  results  that  they  are  not  liable 
for  the  injury  to  the  cargo  resulting  from  the  fire." 

Under  this  first  section  exempting  the  ship  from  entire 
liability,  it  has  been  held,  in  considering  the  peculiar  phrase- 
ology of  the  section  itself,  that  it  only  applied  to  fire  on  the 
ship,  or  to  fires  originating  off  the  ship,  and  then  commu- 
nicating to  the  ship,  and  damaging  goods  on  the  ship.  If 
the  injury  was  received  to  goods  on  the  wharf,  or  a  wharf- 


308  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16 

boat  alongside  of  the  ship,  there  would  not  be  any  exemp- 
tion from  liability  under  the  terms  of  this  first  section.6 

At  the  same  time,  an  injury  by  fire,  even  though  not  on 
the  ship,  can  be  set  up  in  partial  exemption  under  section 
4283;  as  injuries  by  fire  occurring  without  the  privity  or 
knowledge  of  owners  come  under  the  terms  of  that  section.7 

Hence,  as  to  injuries  by  fire,  the  question  of  exemption 
may  arise  in  two  ways :  First,  if  it  occurred  on  board  the 
ship  without  any  personal  design  or  neglect  of  the  ship- 
owner, complete  exemption  from  liability  can  be  pleaded; 
second,  if  it  occurs  in  such  way  as  to  render  the  ship  or  the 
shipowner  liable  under  a  proceeding  in  the  admiralty,  wheth- 
er that  proceeding  is  actually  taken  in  the  admiralty  or  in 
the  state  court,  the  owner  may  plead  partial  exemption  by 
surrendering  the  vessel  and  freight  under  the  terms  of  sec- 
tion 4283. 
Exemption  from  Contract  Liability  by  Act  of  June  26,  188  Jf. 

The  act  of  1851  remained  substantially  as  originally  draft- 
ed, with  the  exception  of  two  slight  amendments  (which  are 
embodied  in  the  text  in  the  last  edition  of  the  Revised  Stat- 
utes), until  1884. 

But  section  18  of  the  act  of  June  26,  1884,  very  much  ex- 
tended its  provisions.  This  section  was  not,  in  terms,  an 
amendment  of  the  act  of  1851.  This  first  act  had  only  ap- 
plied to  cases  ex  delicto.  By  the  new  act  the  owners  were 
allowed  to  limit  their  liability  to  their  proportionate  inter- 
ests in  the  vessel  against  contractual  obligations  incurred  by 
a  master  or  part  owner.  But  this  was  only  to  such  debts 
as  they  would  become  liable  for  on  account  of  their  owner- 
ship in  the  vessel,  and  did  not  apply  to  personal  contracts  of 
their  own. 

e  The  Egypt  (D.  C.)  25  Fed.  320;  The  City  of  Clarksville  (D.  0.)  94 
Fed.  201. 

"  PROVIDENCE  &  N.  Y.  S.  S.  CO.  v.  MANUFACTURING  CO., 
109  U.  S.  578,  3  Sup.  Ct.  379,  617,  27  L.  Ed.  1038. 


§    161)       HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION.  309 

The  difference  between  the  two  acts  is  explained  in  the 
case  of  The  Annie  Faxon,8  where  the  court  says: 

"We  fail  to  find  in  the  language  of  the  eighteenth  section 
of  the  act  of  June  26,  1884,  a  purpose  to  repeal  the  provi- 
sions of  any  pre-existing  statute.  While  its  terms  are 
vague,  it  would  appear  that  the  sole  object  of  the  act  was 
to  fix  the  liability  of  the  shipowners  among  themselves,  and 
extend  their  right  to  limit  their  liability  under  the  provisions 
of  section  4283  to  all  cases  of  debt  and  liability  under  con- 
tract obligations  made  on  account  of  the  ship,  with  the  ex- 
ception of  wages  due  employes.  In  Chappell  v.  Bradshaw 
(C.  C.)  35  Fed.  923,  the  court  construed  it  thus :  'There 
are  no  words  in  it  which  signify  that  it  was  intended  to  be 
a  repealing  statute.  It  appears  to  be  another  section,  in- 
tended to  take  its  place  at  the  end  of  the  act  of  1851,  as  that 
act  is  given  in  the  Revised  Statutes.  It  is  another  section, 
extending  the  exemption  of  shipowners  to  all  or  any  debts 
or  liabilities  of  the  ship,  except  seamen's  wages  and  lia- 
bilities incurred  before  the  passage  of  the  act  of  1884. 
Where  a  subsequent  statute  can  be  so  construed  as  not  to 
bring  it  in  direct  conflict  with  an  antecedent  law,  it  will  not 
be  held  by  the  courts  to  repeal  the  former  statute.  Repeals 
by  implication  are  seldom  allowed,  and  to  do  so  in  this  in- 
stance would  be  to  do  violence  to  the  intention  of  congress, 
which  appears  to  have  been  to  extend  the  act  of  1851  to 
exempt  shipowners  from  liabilities  not  embraced  in  this  act.' 
In  Gokey  v.  Fort  (D.  C.)  44  Fed.  364,  Brown,  J.,  said:  'I 
think  the  act  of  1884  is  doubtless  to  be  treated  as  in  pari 
materia  with  the  act  of  1851  (Rev.  St.  §§  4233-4285),  and 
designed  to  extend  the  act  of  1851  to  cases  of  the  master's 
acts  or  contracts,  and  thus  to  bring  our  law  into  harmony 
with  the  general  maritime  law  on  this  subject.' " 

Amendment  of  June  19,  1886 — Constitutionality. 

The  act  of  June  19,  1886,  was,  in  terms,  an  amendment  of 
the  act  of   185 1.     The  original  act  had  debarred  from  its 

«21  0.  C.  A.  366,  75  Fed.  312. 


310  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16 

benefits  the  owners  of  any  canal  boat,  barge,  or  lighter,  or 
any  vessel  used  in  rivers  or  inland  navigation.  There  had 
been  some  discussion  as  to  the  meaning  of  "inland  naviga- 
tion" under  this  law,  and  it  had  been  held,  among  others, 
that  the  exception  did  not  apply  to  the  Great  Lakes.9 

The  question  of  the  constitutionality  of  these  acts  has 
been  considered  in  two  notable  cases.  In  the  case  of  Lord 
v.  Goodall,  N.  &  P.  S.  S.  Co.,10  the  constitutionality  of 
the  act  was  upheld  under  the  commerce  clause  of  the  con- 
stitution ;  that  being  a  case  of  a  vessel  which  navigated  the 
high  seas  between  ports  of  the  same  state.  But  afterwards 
the  question  as  to  the  validity  of  the  law  in  relation  to  ves- 
sels engaged  solely  in  inland  navigation  came  before  the 
court,  and  the  constitutionality  of  the  law  was  sustained  un- 
der the  admiralty  clause  of  the  constitution,  independent  of 
the  commerce  clause.  The  reasoning  of  the  court  is,  in 
substance,  that  the  doctrine  of  limited  liability  is  a  well-es- 
tablished part  of  the  general  maritime  law,  and  that,  while 
that  general  law  has  no  place  in  our  jurisprudence  until 
adopted,  the  right  to  adopt  it  at  any  time  is  clearly  vested 
in  congress.  This  question  has  been  discussed  fully  in  the 
chapter  relating  to  injuries  resulting  in  death,  to  which  ref- 
erence is  made.11 

BY     WHOM     LIMITATION     OF    LIABILITY    MAY    BE 
CLAIMED. 

162.  The  benefit  of  the  act  may  be  claimed  by  any 
part  owner  who  had  no  privity  or  knowledge 
of  the  fault  which  gave  rise  to  the  liability. 

Where  a  vessel  is  owned  by  several  parties,  and  incurs  lia- 
bilities, even  though  those  liabilities   are   incurred   by  the 

»  Craig  v.  Insurance  Co.,  141  U.  S.  638,  12  Sup.  Ct  97,  35  L.  Ed.  886. 
104  Sawy.  292,  Fed.  Cas.  No.  8,506;    Id.,  102  U.  S.  541,  26  L.  Ed. 
224. 

ii  Ante,  pp.  204-207. 


§    1G3)       AGAINST    WHAT    LIMITATION    MAY    BE    CLAIMED.  311 

master  or  managing  owner,  the  other  part  owners,  who  had 
no  privity  or  knowledge  of  it,  can  claim  the  benefit  of  the 
act,  and  limit  their  responsibility  to  the  value  of  their  sev- 
eral part  interests.  This  applies  to  debts  and  liabilities  con- 
tracted in  the  usual  course  of  trade  of  a  vessel,  as  well  as 
to  torts.1 

Its  benefits  may  be  claimed  by  the  underwriter  to  whom 
a  vessel  has  been  abandoned,  and  against  any  liability  in- 
curred while  the  vessel  is  in  charge  of  their  agent.2 

As  the  act  is  part  of  the  general  maritime  law,  it  may 
be  claimed  by  a  foreigner.8 

AGAINST  WHAT   LIABILITIES   LIMITATION  MAY  BE 

CLAIMED. 

163.  The  liabilities  against  which  the  exemption 
given  by  the  act  may  be  asserted  are  such 
liabilities  as  would  be  cognizable  in  the  ad- 
miralty court  by  suit  against  the  vessel  or 
against  the  owners  in  personam,  even 
though  in  the  special  case  they  are  being 
asserted  in  a  common-law  court. 

The  leading  decision  laying  this  down  as  the  test  is  the 
case  of  EX  PARTE  PHENIX  INS.  CO.1  In  that  case  a 
fire  had  communicated  from  the  vessel  to  the  shore,  and 
had  done  damage  on  the  shore.  It  was  contended  that  the 
vessel  owner  could  limit  his  liability  against  such  a  cause 
of  action  as  this,  and  that  it  came  within  the  language  of  the 
statute.     The  court,  however,  held  that,  as  a  cause  of  ac- 

|  162.  i  In  re  Leonard  (D.  C.)  14  Fed.  53;  Warner  v.  Boyer  (D. 
C.)  74  Fed.  873;  TLe  S.  A.  MeCaulley  (D.  C.)  99  Fed.  302;  Douse  v. 
Sargent  (D.  C.)  48  Fed.  806. 

2  Craig  v.  Insurance  Co.,  141  U.  S.  638,  12  Sup.  Ct.  97,  35  L.  Ed.  886. 

•  THE  SCOTLAND,  105  U.  S.  24,  26  L.  Ed.  1U01. 

S  163.     i  118  U.  S.  610,  7  Sup.  Ct.  25,  30  L  Ed.  274. 


312  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    1G 

tion  originating  on  water,  but  consummate  on  land,  could 
not  be  asserted  in  an  admiralty  court,  the  owner  could  not 
claim  the  benefit  of  the  act,  it  being  a  part  of  the  general 
maritime  law,  and  resting  mainly  on  that  law  for  its  va- 
lidity.2 

As  examples  of  such  causes  of  action,  the  defense  has  been 
sustained  against  fires  on  vessels,3  and  may  be  pleaded  not 
only  against  loss  or  damage  to  property,  but  also  against 
personal  injuries,  including  those  resulting  in  death;  and 
not  only  against  those  injured  on  the  vessel  itself  which  is 
setting  up  the  exemption,  but  those  also  injured  upon  an- 
other vessel  by  the  negligence  of  the  vessel  asserting  the 
exemption.4 

This  includes  injuries  due  to  collision.8 

In  this  respect  the  policy  of  the  act  differs  strikingly  from 
that  of  the  Harter  act.  It  has  been  seen  6  that  the  Harter 
act  is  held  to  regulate  only  the  relations  between  a  ship- 
per and  his  own  ship,  and  not  to  affect  any  rights  of  ac- 
tion which  parties  on  another  ship  injured  by  the  offend- 
ing ship  may  have. 

On  the  other  hand,  this  act  enables  the  owner  to  defend 
himself  not  only  against  his  own  shippers  or  passengers, 
but  against  those  on  the  other  vessel  as  well.  The  reason 
for  the  difference  of  policy  is,  probably,  that  the  Harter  act 
works  an  entire  exemption  from  all  liability,  whereas  this 
act  permits  the  injured  party  to  subject  the  owner's  interest 

2  See,  also,  Goodrich  Transp.  Co.  v.  Gagnon  (C.  C.)  36  Fed.  123. 

»  Ante,  pp.  305-oUS. 

*  BUTLER  v.  STEAMSHIP  CO.,  130  U.  S.  527,  9  Sup.  Ct.  612,  32  L. 
Ed.  1017;  The  Albert  Dumois,  177  U.  S.  240,  20  Sup.  Ct.  595,  44  L. 
Ed.  751;  The  City  of  Columbus  (D.  C.)  22  Fed.  460;  The  Amsterdam 
(D.  C.)  23  Fed.  112;  Glaholm  v.  Barker,  L.  R.  2  Eq.  598;  Id.,  1  Ch. 
App.  223. 

6  NORWICH  &  N.  Y.  TRANSP.  CO.  v.  WRIGHT,  13  Wall.  104,  20 
L.  Ed.  5S5;  The  Great  Western,  118  U.  S.  520,  6  Sup.  Ct.  1172,  30 
L.  Ed.  156. 

«  Ante,  p.  169. 


§    164)  PRIVITY    OR    KNOWLEDGE    OF    OWNER.  313 

in  the  vessel,  and  merely  protects  the  owner  from  addi- 
tional liability  beyond  the  value  of  his  vessel. 

The  act  may  be  invoked  even  against  unseaworthiness 
caused  by  negligent  loading,  which  is  another  striking  dif- 
ference between  it  and  the  Harter  act.7 

It  may  be  pleaded  against  any  wrongful  acts  of  the  mas- 
ter;  for  example,  his  wrongful  sale  of  the  cargo.8 

PRIVITY  OB,  KNOWLEDGE    OF  OWNER. 

164.  In  order  for  the  owners  to  exonerate  them- 
selves, the  negligent  act  must  have  been 
without  their  privity  or  knowledge.  This 
means  the  personal  privity  or  knowledge  of 
the  owners,  and  not  the  mere  privity  or 
knowledge  of  their  agents,  except  in  the 
case  of  a  corporation,  where  the  privity  or 
knowledge  of  the  president  or  other  high 
officer  above  the  grade  of  an  employe  is  the 
privity  or  knowledge  of  the  corporation, 
and  would  defeat  the  right  of  the  corpora- 
tion to  the  exemption. 

The  question  what  constitutes  privity  or  knowledge  is  a 
nice  one,  and  has  been  the  subject  of  much  discussion.  It 
is  clear,  at  the  outset,  that  actual  knowledge  of  the  owners 
would  prevent  them  from  claiming  the  exemption.1 

Nor  can  it  be  claimed  against  liabilities  which  the  own- 
ers have  personally  contracted ;  for  instance,  supplies  or- 
dered by  them  personally.2 

T  THE  COLIMA  (D.  C.)  82  Fod.  605. 
•  The  Giles  Loring  (D.  C.)  48  Fed.  463. 
§  164.     i  In  re  Meyer  (D.  C.)  74  Fed.  881. 

2  The  Amos  I).  Carver  il».  C.)  35  Fed.  605;  McPhall  v.  Williams 
(D.  0.)  41  Fed.  61;   Gokey  v.  Fort  (D.  C.l   n  Fed.  364. 


314  IilGIITS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16 

It  can  be  claimed  only  against  those  liabilities  incurred 
as  owner,  not  against  contracts  outside  of  the  regular  func- 
tions of  the  vessel  owner.  For  instance,  it  has  been  held 
that  it  could  not  be  set  up  against  a  vessel  owner's  contract 
to  insure  the  goods  shipped.3 

It  may  be  set  up  even  against  defects  which  would  be  held 
to  constitute  unseaworthiness  if  those  defects  were  not  dis- 
coverable by  the  ordinary  examination  of  an  unskilled  per- 
son. In  the  case  of  Quinlan  v.  Pew  4  the  owners  had  char- 
tered the  vessel  out  to  the  master.  There  was  a  defect  in 
the  rigging  at  the  time  of  the  commencement  of  the  voyage 
which  the  owners  did  not  know,  and  which  the  master  did 
know  before  she  sailed.  The  owners  had  employed  him  to 
put  the  vessel  in  order,  and  he  did  not  report  this  defect  to 
them.  In  consequence  of  the  defect,  one  of  the  crew  was 
injured,  and  the  owners  attempted  to  limit  their  liability  by 
appealing  to  this  statute.  This  was  contested  on  the  ground 
that  they  ought  to  have  known  of  this  defect ;  that  it  was 
such  a  defect  as  affected  the  seaworthiness  of  the  vessel, 
and  that,  therefore,  they  should  be  denied  the  exemption. 
The  court,  however,  held  that  the  knowledge  of  the  agent 
employed  by  them  to  make  these  repairs,  and  their  joint  ob- 
ligation to  render  the  vessel  seaworthy,  did  not  make  them 
privy  to  this  defect,  and  therefore  that  they  were  entitled  to 
limit  their  liability. 

In  the  case  of  The  Warkworth,6  which  arose  under  the 
English  statute,  a  collision  was  caused  by  a  defect  in  the 
steering  gear  of  the  vessel.  The  owners  had  employed  a 
man  on  shore  to  inspect  the  vessel ;  and,  if  he  had  done  his 
duty,  the  defect  could  have  been  discovered.  It  was  held 
that  this  fact  did  not  prevent  the  owners  from  limiting  their 
liability. 

»  Laverty  v.  Clausen  (D.  C.)  40  Fed.  542. 

*  5  C.  C.  A.  438.  56  Fed.  111. 

6  9  Prob.  Div.  20;    Id.,  0  I'rob.  Div.  145. 


§    164)  PRIVITY    OR    KNOWLEDGE    OF    OWNER.  315 

In  Lord  v.  Goodall,  N.  &  P.  S.  S.  Co.,6  Circuit  Judge 
Sawyer  thus  discusses  the  meaning  of  the  words  "privity 
or  knowledge" : 

"As  used  in  the  statute,  the  meaning  of  the  words  'privity 
or  knowledge'  evidently  is  a  personal  participation  of  the 
owner  in  some  fault  or  act  of  negligence  causing  or  contrib- 
uting to  the  loss,  or  some  personal  knowledge  or  means  of 
knowledge,  of  which  he  is  bound  to  avail  himself,  of  a  con- 
templated loss,  or  of  a  condition  of  things  likely  to  produce 
or  contribute  to  the  loss,  without  adopting  appropriate 
means  to  prevent  it.  There  must  be  some  personal  con- 
currence, or  some  fault  or  negligence  on  the  part  of  the 
owner  himself,  or  in  which  he  personally  participates,  to 
constitute  such  privity,  within  the  meaning  of  the  act,  as 
will  exclude  him  from  the  benefit  of  its  provisions.  Hill 
Mfg.  Co.  v.  Providence  &  N.  Y.  S.  S.  Co.,  113  Mass.  499, 
18  Am.  Rep.  527.  It  is  the  duty  of  the  owner,  however,  to 
provide  the  vessel  with  a  competent  master  and  a  compe- 
tent crew,  and  to  see  that  the  ship,  when  she  sails,  is  in  all 
respects  seaworthy.  He  is  bound  to  exercise  the  utmost 
care  in  these  particulars, — such  care  as  the  most  prudent 
and  careful  men  exercise  in  their  own  matters  under  similar 
circumstances ;  and  if,  by  reason  of  any  fault  or  neglect  in 
these  particulars,  a  loss  occurs,  it  is  with  his  privity,  within 
the  meaning  of  the  act.  *  *  *  So,  also,  if  the  owner  has 
exercised  all  proper  care  in  making  his  ship  seaworthy,  and 
yet  some  secret  defect  exists,  which  could  not  be  discov- 
ered by  the  exercise  of  such  due  care,  and  the  loss  occurs 
in  consequence  thereof,  without  any  further  knowledge  or 
participation  on  his  part,  he  is  in  like  manner  exonerated, 
for  it  cannot  be  with  his  'privity  or  knowledge,'  within  the 
meaning  of  the  act,  or  in  any  just  sense ;   and  the  provision 

«  4  Sawy.  292,  Fed.  Cas.  No.  8,506.  This  case  was  taken  to  the 
supreme  court,  and  was  affirmed  on  the  question  of  the  constitu- 
tionality of  the  statute.  See  102  U.  S.  541,  2G  L.  Ed.  224.  The 
merits  do  not  seem  to  have  come  before  the  supreme  court. 


316  RIGHTS    AND    LIABILITIES   OF    OWNERS.  (Ch.    16 

is  that  'the  liability  of  the  owner  *  *  *  for  any  act, 
matter,  or  thing,  loss,  etc.,  *  *  *  occasioned  without 
the  privity  or  knowledge  of  such  owner  or  owners,  shall  in 
no  case  exceed  the  amount  or  value  of  the  interest  of  such 
owner  in  such  vessel  and  her  freight  then  pending.'  This 
language  is  broad,  and  takes  away  the  quality  of  warranty 
implied  by  the  common  law  against  all  losses  except  by  the 
act  of  God  and  the  public  enemy.  When  the  owner  is  a 
corporation,  the  privity  or  knowledge  of  the  managing  offi- 
cers of  the  corporation  must  be  regarded  as  the  privity  and 
knowledge  of  the  corporation  itself." 

This  construction  of  the  words  is  rather  harder  on  the 
owner  than  the  case  of  Quinlan  v.  Pew,  supra,  but  the  latter 
is  more  in  accord  with  the  later  authorities. 

The  question  of  the  privity  or  knowledge  of  a  corpora- 
tion has  been  the  subject  of  many  interesting  decisions. 
The  result  of  these  decisions  may  be  stated  in  substance  to 
be  that  knowledge  of  some  defect  (even  amounting  to  un- 
seaworthiness) by  some  agent  or  employe  is  not  the  knowl- 
edge of  the  corporation,  so  as  to  defeat  its  right  to  the  ex- 
emption ;  but  the  knowledge  of  the  president  or  other  high 
officer  of  the  corporation  would  be. 

In  THE  COLIMA,7  the  vessel  was  rendered  unsea- 
worthy  by  the  method  in  which  her  master  and  crew  loaded 
her,  and  it  was  contended  that  this  defeated  the  corporation 
owner's  right  to  the  exemption.  District  Judge  Brown, 
however,  held  that  it  did  not.     In  his  opinion  he  says : 

"I  think  the  petitioner,  upon  surrender  of  the  freight 
($23,846.58),  is  entitled  to  the  exemption  provided  by  section 
4283  of  the  Revised  Statutes,  as  not  being  privy  to  the  de- 
fects in  loading,  or  in  the  management  of  the  ship  at  sea, 
nor  having  knowledge  of  them.  Privity  and  knowledge  are 
chargeable  upon  a  corporation  when  brought  home  to  its. 
principal  officers,  or  to  the  superintendent,  who  is  its  rep- 

t  (I).  C.J  82  Fed.  665. 


§    164)  PRIVITY    OR    KNOWLEDGE    OF    OWNER.  317 

resentative;    and,   if  such  privity  or  knowledge  were  here 
brought  home  to  Mr.  Schwerin,  the  petitioner's  superintend- 
ent, they  would  be  chargeable  upon  the  corporation.     But 
the  privity  or  knowledge  referred  to  in  the  statute  is  not 
that  which  arises  out  of  the  mere  relation  of  principal  and 
agent  by  legal  construction.     If  it  were,  the  statute  would 
have  nothing  to  operate  upon,  since  the  owner  does  not 
become  liable  at  all  except  for  the  acts  of  himself  or  his 
agent.     The  object  of  this  statute,  however,  was  to  abridge 
the  liability  of  shipowners  arising  out  of  a  merely  construct- 
ive privity  with  their  agent's  acts,  by  introducing  the  rule  of 
limited  liability  prevailing  in  the  general  maritime  law,  up- 
on the  terms  prescribed  in  the  statute,  so  far  at  least  as  re- 
spects damages  for  torts;  while  the  act  of  1884  extends  this 
limitation  to  contracts  also,  except  as  to  seamen's  wages. 
*     *     *     The  knowledge  or  privity  that  excludes  the  oper- 
ation of  the  statute  must,  therefore,  be  in  a  measure  actual, 
and  not  merely  constructive;    that  is,  actual  through  the 
owner's  knowledge,  or  authorization,  or  immediate  control 
of  the  wrongful  acts  or  conditions,  or  through  some  kind  of 
personal  participation  in  them.     If  Mr.  Schwerin,  the  su- 
perintendent, had  been  either  charged  personally  with  the 
duty  of  directing  or  managing  the  distribution  of  this  cargo 
with  reference  to  the  stability  of  the  ship,  or  had  assumed 
that  function,  the  company  would  perhaps  have  been  'privy' 
to   any   defects   in  loading  arising  from  the  negligence   of 
workmen  under  his  immediate  direction  and  control,  wheth- 
er he  had  actual  knowledge  of  their  delinquencies  or  not; 
since  it  is  the  duty  of  the  person  in  immediate  charge  and 
actual  control  to  see  and  know  that  proper  directions  are 
carried  out.     However  that  may  be,  Mr.  Schwerin  had  no 
such  duty,  and  assumed  no  such  function.     That  duty,  as 
the  evidence  shows,  was  committed  to  a  competent  steve- 
dore, who  acted  under  the  immediate  direction  of  the  master 
and  first  mate,  or  in  conjunction  with  them.     The  master 
and  mate  were  the  proper  persons  to  determine  and  insure 


318  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16. 

the  necessary  trim  and  stability  of  the  ship,  and  are  sup- 
posed to  be  specially  qualified  to  do  so.  Lawrence  v.  Min- 
turn,  17  How.  ioo,  III,  116,  15  L.  Ed.  58.  Whatever  mis- 
takes or  negligence  may  have  occurred  in  that  work,  there 
is  no  evidence  that  Mr.  Schwerin  knew  of  them ;  nor  would 
they  naturally  have  come  to  his  knowledge;  and  I  do  not 
see  the  least  reason  to  doubt  his  testimony  that  he  believed 
that  the  ship  was  properly  loaded,  and  perfectly  seaworthy. 
The  deck  load  was  no  indication  to  the  contrary,  because 
deck  loads  were  customary,  and  safe  with  proper  loading 
below." 

In  The  Annie  Faxon,8  an  injury  happened  from  an  ex- 
plosion of  the  boiler.  It  appeared  that  the  corporation 
owning  the  vessel  had  left  the  duty  of  inspecting  this  boiler 
to  a  competent  marine  engineer,  and  that  the  defect  which 
caused  the  injury  would  not  have  been  apparent  to  an  un- 
skilled person.  It  was  held  that  the  negligence  of  this  em- 
ploye to  inspect  the  boiler  properly  was  not  such  privity  or 
knowledge  of  the  corporation  as  defeated  its  right  to  the 
exemption.     In  the  opinion  Gilbert,  J.,  says: 

"We  are  unable  to  perceive  how  there  can  be  imputation 
of  privity  or  knowledge  to  a  corporation  of  defects  in  one 
of  its  vessel's  boilers,  unless  the  defects  were  apparent,  and 
of  such  a  character  as  to  be  detected  by  the  inspection  of  an 
unskilled  person.  The  record  fails  to  show  that  the  de- 
fects were  of  this  character.  The  testimony  fairly  sustains 
the  finding  of  the  court  that  the  defects  in  the  boiler  were 
not  patent,  and  that  they  could  have  been  discovered  only  by 
applying  the  proper  test  after  the  repairs  of  June,  1893. 
The  test  was  not  applied,  and  in  that  omission  is  one  of  the 
elements  of  the  negligence  of  the  petitioners,  as  found  by 
the  court.  When  we  consider  the  purpose  of  the  law  which 
is  under  consideration,  and  the  construction  that  has  been 
given  to  it  by  the  courts,  it  is  obvious  that  the  managers  of 

s  21  C.  C.  A.  3G6,  75  Fed.  312. 


§    164)  PRIVITY    OR    KNOWLEDGE    OF    OWNER.  319 

a  corporation  whose  business  is  the  navigation  of  vessels  are 
not  required  to  have  the  skill  and  knowledge  which  are  de- 
manded of  an  inspector  of  a  boiler.  It  is  sufficient  if  the 
corporation  employ,  in  good  faith,  a  competent  person  to 
make  such  inspection.  When  it  has  employed  such  a  per- 
son in  good  faith,  and  has  delegated  to  him  that  branch  of 
its  duty,  its  liability  beyond  the  value  of  the  vessel  and 
freight  ceases,  so  far  as  concerns  injuries  from  defects  of 
which  it  has  no  knowledge,  and  which  are  not  apparent  to 
the  ordinary  observer,  but  which  require  for  their  detection 
the  skill  of  an  expert." 

It  was  held,  however,  in  this  same  case,  that  the  require- 
ment of  section  4493  of  the  Revised  Statutes,  making  excep- 
tions in  favor  of  passengers  on  vessels,  was  not  affected  by 
the  limited  liability  act,  it  being  an  entirely  different  stat- 
ute, which,  when  considered  in  pari  materia  with  the  limited 
liability  act,  might  be  considered  as  an  exception  to  it. 

In  the  case  of  Craig  v.  Continental  Ins.  Co.,0  the  injury 
arose  from  the  negligence  of  an  employe  of  the  insurance 
company  to  which  the  vessel  had  been  abandoned.  The  em- 
ploye was  attempting  to  bring  her  to  port  in  a  disabled  con- 
dition. The  court  held  that  his  negligence  was  not  the 
privity  or  knowledge  of  the  insurance  company,  which  own- 
ed her  by  virtue  of  the  abandonment,  and  that  they  could 
claim  the  limitation  of  liability. 

On  the  other  hand,  in  the  case  of  The  Republic,10  a  barge 
belonging  to  a  corporation  was  being  used  for  an  excursion, 
and  while  in  such  use,  with  many  passengers  aboard,  was 
injured  by  a  thunderstorm  of  no  extraordinary  severity. 
The  barge  had  been  inspected  by  the  president  of  the  cor- 
poration, and  its  unsafe  condition  was  apparent.  The  court 
held  that  his  knowledge  was  the  knowledge  of  the  corpora- 
tion, and  that  they  could  not  plead  the  statute  in  defense  un- 
der such  circumstances. 

»141  U.  S.  638,  L2  Sup.  Ct.  97,  35  L.  Ed.  888. 
10  D  c.  C.  A.  obi;,  (Jl  Fed.  109. 


320  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16  ^ 

THE  VOYAGE  AS   THE  UNIT. 

165.  The  end  of  the  voyage  is  the  time  as  of  which 
the  exemption  can  be  claimed,  the  voyage 
being  taken  as  the  unit.  If  the  voyage  is 
broken  up  by  a  disaster, — as,  for  example, 
when  the  vessel  is  totally  lost, — that  is  taken 
as  the  time. 

It  can  readily  be  understood  that  the  act  does  not  intend 
to  permit  the  owners  an  exemption  for  an  indefinite  pc 
prior  to  the  accident.  As  the  act  of  1884  extended  the  right 
of  exemption  to  debts  as  well  as  torts,  the  hardship  of  such 
a  construction  would  be  patent.  Hence  the  courts  have 
taken  the  voyage  as  the  unit,  and  permitted  the  owner  to 
protect  himself  simply  against  the  liabilities  of  the  voyage. 
This  may  be  a  very  difficult  test  to  apply  in  many  cases,  and, 
in  fact,  in  the  case  of  boats  which  make  very  short  voyages, 
may  very  greatly  curtail  the  benefit  of  the  act  to  the  owner ; 
but  that  is  well  settled  as  the  test. 

In  THE  CITY  OF  NORWICH,1  this  was  laid  down  as 
the  rule  by  the  United  States  supreme  court.  There  the 
vessel  was  destroyed  by  an  accident. 

In  the  case  of  The  Great  Western,2  the  vessel  had  one 
accident,  and,  proceeding  on  her  voyage,  had  a  second  ac- 
cident, entirely  disconnected  with  the  first — the  result  of  the 
second  accident  being  the  wreck  of  the  vessel.  The  court 
held  that  the  termination  of  the  voyage  was  the  second  acci- 
dent, and  that  the  owners  could  limit  their  liability  for  every- 
thing up  to  that  point  on  that  voyage.3 

§  1(35.     1  118  U.  S.  468,  6  Sup.  Ct.  1150,  30  L.  Ed.  134. 
2  118  U.  S.  520,  6  Sup.  Ct.  1172,  30  L.  Ed.  156. 
s  See,  also,  Gokey  v.  Fort  (D.  C.)  44  Fed.  364;   The  Geo.  L.  Gar- 
lick  (O.  0.  A.)  107  Fed.  542. 


§    I67~y  MEASURE    OF    LIABILITY.  321 

EXTENT  OF  LIABILITY  OF  PART  OWNERS. 

166.  The    part   owners  are  liable  each  to   the   ex- 

tent of  their  proportionate  interest  in  the 
vessel,  except  that  a  part  owner  personally 
negligent  cannot  claim  the  exemption  at  all.1 

MEASURE    OP     LIABILITY— TIME     OF     ESTIMATING 

VALUES. 

167.  The  value   of  the  vessel    and  pending  freight 

is  taken  just  after  the  accident,  or  end  of 
the  voyage,  if  the  voyage  is  not  broken  up 
by  the  accident. 

This  is  laid  down  by  the  supreme  court  in  the  case  of  THE 
SCOTLAND,1  and  marks  a  striking  difference  between  the 
American  and  English  act.  Our  act  fixes  the  value  of  the 
vessel  just  after  the  accident,  so  that,  if  she  is  totally  lost, 
the  liability  of  the  owner  is  practically  nothing.  The  Eng- 
lish act,  on  the  other  hand,  takes  a  tonnage  valuation  just 
before  the  accident,  so  that,  in  case  of  total  loss,  under  the 
English  act  the  owner  must  make  up  to  the  creditors  of  the 
vessel  practically  the  value  of  the  vessel  uninjured. 

In  the  case  of  THE  CITY  OF  NORWICH,2  it  is  settled  as 
the  law  of  this  country  that  the  value  is  taken  as  of  the  end 
of  the  voyage,  if  not  lost,  but  at  the  accident  if  the  vessel  is 
totally  lost,  and  the  voyage  thereby  broken  up.  Hence,  if  a 
vessel  is  partially  injured,  and  subsequently  repaired,  the 
owners  can  have  the  repairs  taken  into  consideration,  and 
receive  credit  for  them  in  the  valuation  of  the  vessel. 

§  1GG.  i  Whltcomb  \.  Emerson  (D.  C.)  50  Fed.  128;  The  Giles 
Loring  (D.  C.)  48  Fed.  4G3. 

§  1<;7.     "  105  D.  S.  24,  20  L.  Ed.  1001. 
2  118  CJ.  S.  468,  6  Sup.  Ct.  1150,  30  L.  Ed.  134. 
HUGHES, AD.-   11 


322  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Cll.    1 G 

The  voyage  itself  may  be  rather  an  indefinite  expression. 
For  instance,  it  has  been  held  in  the  case  of  a  vessel  used 
during  a  fishing  season  that  the  entire  fishing  season  ought 
to  be  treated  as  one  voyage,  and  that,  therefore,  the  owners 
must  account  for  the  entire  season's  earnings  in  order  to 
obtain  the  benefit  of  the  limitation.8 

SAME— PRIOR  LIENS. 

168.    The   res  must  be  surrendered    clear    of  prior 
liens. 

In  fixing  the  value,  the  owner  must  account  for  the  value 
of  the  res,  clear  of  all  liens  or  claims  prior  to  the  voyage. 

The  res,  in  the  sense  of  this  statute,  may  sometimes  con- 
sist of  more  than  one  vessel.  In  The  Bordentown,1  several 
tugs  belonging  to  the  same  owner  were  towing  a  large  tow 
of  many  barges.  After  the  towage  commenced,  one  of  the 
tugs  was  detached,  but  the  two  remaining  tugs  were  guilty 
of  an  act  of  negligence,  causing  great  loss.  The  court  held 
that  the  owner,  in  order  to  claim  the  benefit  of  the  statute, 
must  surrender  the  two  tugs  that  participated  in  the  negli- 
gent act,  but  not  the  one  which  had  been  detached  before  the 
act  occurred. 

In  the  case  of  The  Columbia,2  a  barge  without  means  of 
propulsion  was  being  towed  by  a  tug,  and  a  large  quantity 
of  freight  was  on  the  barge.  When  exemption  was  claimed 
against  an  accident,  including  large  claims  of  personal  in- 
jury, it  was  held  that  the  owner  was  required  to  surrender 
both  the  tug  and  the  barge. 

As  stated  above,  the  owner  must  also  surrender  the  ves- 
sel clear  of  prior  liens.  If  this  were  not  so,  he  might,  by 
mortgaging  the  vessel  to  her  value,  practically  withdraw  all 

«  Whitcomb  v.  Emerson  (D.  C.)  50  Fed.  128. 
§  1G8.     i  (D.  C.)  40  Fed.  682. 
a  10  C.  C.  A.  43G,  73  Fed.  226. 


§    168)  MEASURE    OF    LIABILITY.  323 

funds  from  the  creditors  of  the  boat.     Accordingly,  in  The 
Leonard  Richards,3  the  court  says : 

"The  first  question  suggested  by  counsel  for  the  owners 
of  the  tug  is  as  to  the  proper  construction  to  be  put  upon 
the  words  'value  of  the  interest  of  the  owner,'  as  used  in 
the  limited  liability  act.  The  section  of  the  act  in  point,  or 
so  much  of  it  as  is  necessary  to  quote,  is  as  follows :  'The 
liability  of  the  owner  of  any  vessel,  *  *  *  for  any  loss, 
damage,  or  injury  by  collision,  *  *  *  done,  occasioned, 
or  incurred,  without  the  privity  or  knowledge  of  such  owner 
or  owners,  shall  in  no  case  exceed  the  amount  or  value  of 
the  interest  of  such  owner  in  such  vessel,  and  her  freight 
then  pending.'  Rev.  St.  U.  S.  §  4283.  It  appears  in  this 
case  that  supplies  to  a  large  amount  had  been  furnished  to 
this  tug,  which  were  at  the  time  of  the  collision  unpaid  for, 
and  which,  under  the  law,  were  liens  upon  the  vessel;  and 
the  insistment  of  counsel  was  that  although  the  tug  had  an 
apparent  value  of  $8,000,  and  had  been  appraised  at  that 
sum,  yet  the  'interest  of  the  owner'  in  her  ought  not  to  be 
calculated  upon  that  basis,  but  that  from  the  appraised  value 
of  the  vessel  should  be  deducted  the  full  amount  of  the  debts 
and  claims  owed  by  the  vessel,  and  the  balance  taken  to  be 
the  true  'value  of  the  interest'  of  the  owner.  In  other  words, 
that,  while  the  stipulation  filed,  and  upon  which  the  tug 
was  released  from  the  custody  of  the  officers  and  returned 
to  her  owner,  was  for  $8,000,  yet  when  the  time  came  for 
payment  of  the  sum  into  court  in  compliance  with  its  con- 
dition, to  be  distributed  among  libelants  and  claimants  ac- 
cording to  law,  there  should  be  first  deducted  therefrom  a 
sum  equal  to  the  full  amount  of  all  debts  due  for  supplies, 
repairs,  etc.,  for  which  liens  against  the  vessel  could  be 
enforced,  and  the  balance  only  brought  here  as  the  true 
value  of  the  owner's  interest,  to  be  distributed  pro  rata 
among  the  libelants.    Without  considering  whether  the  own-' 

»  (D.  C.)  41  Fed.  818.     See,  also,  Gokey  v.  Fori  (D.  C.)  44  Fed.  364. 


324.  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16 

er  is  not,  by  his  own  act,  estopped  from  raising  this  question 
now,  after  entering  into  a  stipulation  to  pay  the  full  amount 
of  the  appraised  value  of  the  tug  if  she  be  found  in  fault  to 
the  other  libelants,  and  in  consideration  thereof  receiving  se- 
curity from  the  law  from  all  further  or  greater  liability,  I 
am  clearly  of  opinion  that  the  real  value  of  the  vessel  in 
fault,  without  regard  to  liens  upon  her  at  the  termination  of 
her  voyage,  upon  which  she  negligently  caused  the  injury 
complained  of,  measures  justly  and  equitably  the  value  of 
the  interest  of  the  owner  therein  as  contemplated  by  the  lim- 
ited liability  act." 

SAME— DAMAGES    RECOVERED    FROM    OTHER    VES- 
SEL. 

169.  The   owner    must  also  surrender  damages  re- 
covered from  another  vessel. 

If  the  owner  has  proceeded  against  another  vessel,  and 
recovered  damages  for  the  injury  to  his  vessel  in  the  acci- 
dent against  which  he  is  claiming  liability,  he  must  surren- 
der these  damages  also,  they  being  considered  practically 
the  representative  of  his  vessel.  This  was  held  in  the  case 
of  O'Brien  v.  Miller.1  In  delivering  the  opinion  of  the 
court,  Mr.  Justice  White  says : 

"The  clear  purpose  of  congress  was  to  require  the  ship- 
owner, in  order  to  be  able  to  claim  the  benefit  of  the  lim- 
ited liability  act,  to  surrender  to  the  creditors  of  the  ship 
all  rights  of  action  which  were  directly  representative  of 
the  ship  and  freight.  Where  a  vessel  has  been  wrongfully 
taken  from  the  custody  of  her  owners,  or  destroyed  through 
the  fault  of  another,  there  exists  in  the  owner  a  right  to 
require  the  restoration  of  his  property,  either  in  specie  or 
by  a  money  payment,  as  compensation  for  a  failure  to  re- 
store the  property.     Manifestly,  if  the  option  was  afforded 

§  1G9.     i  168  U.  S.  2S7,  18  Sup.  Ct.  140,  42  L.  Ed.  469. 


§    1G9)  MEASURE    OF    LIABILITY.  325 

the  owner  of  the  ship  to  receive  back  his  property  or  its 
value,  he  could  not,  by  electing  to  take  its  value,  refuse  to 
surrender  the  amount  as  a  condition  to  obtaining  the  benefit 
of  the  act.  *  *  *  Indeed,  that  a  right  of  action  for  the 
value  of  the  owner's  interest  in  a  ship  and  freight  is  to  be 
considered  as  a  substitute  for  the  ship  itself,  was  decided  in 
this  court  in  the  case  of  Sheppard  v.  Taylor,  5  Pet.  675,  8 
L.  Ed.  269.  *  *  *  Mr.  Justice  Story,  delivering  the 
opinion  of  the  court,  said  (page  710,  5  Pet.,  and  page  282,  8 
L.  Ed.) :  'If  the  ship  had  been  specifically  restored,  there  is 
no  doubt  that  the  seamen  might  have  proceeded  against  it 
in  the  admiralty  in  a  suit  in  rem  for  the  whole  compensation 
due  to  them.  They  have,  by  the  maritime  law,  an  indisputa- 
ble lien  to  this  extent.  This  lien  is  so  sacred  and  indelible 
that  it  has  on  more  than  one  occasion  been  expressively 
said  that  it  adheres  to  the  last  plank  of  the  ship.  Relf  v.  The 
Maria,  1  Pet.  Adm.  186,  195,  note,  Fed.  Cas.  No.  11,692;  The 
Sydney  Cove,  2  Dod.  13;  The  Neptune,  1  Hagg.  Adm.  227, 
239.  And,  in  our  opinion,  there  is  no  difference  between  the 
case  of  a  restitution  in  specie  of  the  ship  itself  and  a  restitu- 
tion in  value.  The  lien  reattaches  to  the  thing,  and  to  what- 
ever is  substituted  for  it.  This  is  no  peculiar  principle  of 
the  admiralty.  It  is  found  incorporated  into  the  doctrines  of 
courts  of  common  law  and  equity.  The  owner  and  the  lien- 
holder,  whose  claims  have  been  wrongfully  displaced,  may 
follow  the  proceeds  wherever  they  can  distinctly  trace  them. 
In  respect,  therefore,  to  the  proceeds  of  the  ship,  we  have 
no  difficulty  in  affirming  that  the  lien  in  this  case  attaches  to 
them.'  Nor  does  the  ruling  in  THE  CITY  OF  NORWICH, 
supra,  that  the  proceeds  of  an  insurance  policy  need  not  be 
surrendered  by  the  shipowner,  conflict  with  the  decision  in 
Sheppard  v.  Taylor.  The  decision  as  to  insurance  was  placed 
on  the  ground  that  the  insurance  was  a  distinct  and  collat- 
eral contract,  which  the  shipowner  was  at  liberty  to  make 
or  not.  On  such  question  there  was  division  of  opini  >n 
among  the  writers  on  maritime  law  and  in  the  various  mari- 


326  RIGHTS    AND    LIABILITIES    OF   OWNERS.  (Ch.   10 

time  codes.  But,  as  shown  by  the  full  review  of  the  authori- 
ties found  in  the  opinion  of  the  court  and  in  the  dissent  in 
THE  CITY  OF  NORWICH,  all  the  maritime  writers  and 
codes  accord  in  the  conclusion  that  a  surrender,  under 
the  right  to  limit  liability,  must  be  made  of  a  sum  received 
by  the  owner  as  the  direct  result  of  the  loss  of  the  ship, 
and  which  is  the  legal  equivalent  and  substitute  for  the  ship. 
We  conclude  that  the  owner  who  retains  the  sum  of  the 
damages  which  have  been  awarded  him  for  the  loss  of  his 
ship  and  freight  has  not  surrendered  'the  amount  or  value' 
(section  4283,  Rev.  St.  U.  S.)  of  his  interest  in  the  ship;  that 
he  has  not  given  up  the  'whole  value  of  the  vessel'  (section 
4284) ;  that  he  has  not  transferred  'his  interest  in  such  ves- 
sel and  freight'  (section  4285).  It  follows  that  the  shipowner, 
therefore,  in  the  case  before  us,  to  the  extent  of  the  dam- 
ages paid  on  account  of  the  collision,  was  liable  to  the  cred- 
itors of  the  ship,  and  the  libelants,  as  such  creditors,  were  en- 
titled to  collect  their  claim,  it  being  less  in  amount  than  the 
sum  of  such  proceeds." 

SAME— FREIGHT. 
170.  Pending  freight  must  be  surrendered. 

The  owner  is  also  required  to  surrender  pending  freight. 
This  has  been  held  to  include  demurrage,  and  prepaid  fare 
of  passengers.1 

If  any  freight  has  been  earned  or  prepaid  during  the  voy- 
age, the  owner  must  account  for  it;  but,  if  the  voyage  is 
broken  up,  so  that  no  freight  is  actually  earned,  then  he  can- 
not be  made  to  pay  it.8 

§  170.  1  The  Giles  Loring  (D.  C.)  48  Fed.  463;  The  Main,  152 
TJ.  S.  122,  14  Sup.  Ct.  4S6,  38  L.  Ed.  381. 

2  THE  CITY  OF  NORWICH,  118  U.  S.  468,  6  Sup.  Ct.  1150,  30 
L.  Ed.  134. 


MEASURE    OF    LIABILITY.  327 

The  freight  that  is  to  be  surrendered  is  the  gross  freight 
for  the  voyage.8 

If  the  vessel  owner  is  carrying  his  own  goods,  he  must 
account  for  a  fair  freight  for  them.* 

SAME— SALVAGE  AND  INSURANCE. 

171.    Salvage    and  insurance    need  not  be   surren- 
dered. 

But  the  owner  does  not  have  to  account  for  salvage  earned 
during  the  voyage.1 

And,  if  the  owner  has  taken  out  insurance,  he  is  not  re- 
quired to  account  for  the  insurance  money  collected  by  him ; 
that  being  a  collateral  undertaking,  and  not  an  interest  in  the 
vessel.  On  this  subject  Mr.  Justice  Bradley  says  in  THE 
CITY  OF  NORWICH:8 

"The  next  question  to  be  considered  is  whether  the  peti- 
tioners were  bound  to  account  for  the  insurance  money  re- 
ceived by  them  for  the  loss  of  the  steamer,  as  a  part  of  their 
interest  in  the  same.  The  statute  (section  4283)  declares 
that  the  liability  of  the  owner  shall  not  exceed  the  amount  or 
value  of  his  interest  in  the  vessel  and  her  freight ;  and  section 
42S5  declares  that  it  shall  be  a  sufficient  compliance  with  the 
law  if  he  shall  transfer  his  interest  in  such  vessel  and  freight, 
for  the  benefit  of  claimants,  to  a  trustee.  Is  insurance  an  in- 
terest in  the  vessel  or  freight  insured,  within  the  meaning  of 
the  law?     That  is  the  precise  question  before  us. 

"It  seems  to  us,  at  first  view,  that  the  learned  justice  who 
decided  the  case  below  was  right  in  holding  that  the  word 
'interest'  was  intended  to  refer  to  the  extent  or  amount  of 
ownership  which  the  party  had  in  the  vessel,  such  as  his 

•  The  Abble  C.  Stubbs  (D.  C.)  28  Fed.  719. 

4  Allen  v.  Mackay,  1  Spr.  219,  Fed.  Cas.  No.  228. 

5  171.     1  In  re  Meyer  (D.  C.)  71  Fed.  881. 

2  US  U.  S.  4G8,  6  Sup.  Ct.  1150,  30  I..   Ed.  KM. 


328  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16 

aliquot  share,  if  he  was  only  a  part  owner,  or  his  contingent 
interest,  if  that  was  the  character  of  his  ownership.  He 
might  be  absolute  owner  of  the  whole  ship,  or  he  might  own 
but  a  small  fractional  part  of  her,  or  he  might  have  a  tempo- 
rary or  contingent  ownership  of  some  kind,  or  to  some  ex- 
tent. Whatever  the  extent  or  character  of  his  ownership 
might  be, — that  is  to  say,  whatever  his  interest  in  the  ship 
might  be, — the  amount  or  value  of  that  interest  was  to  be 
the  measure  of  his  liability. 

"This  view  is  corroborated  by  reference  to  a  rule  of  law 
which  we  suppose  to  be  perfectly  well  settled,  namely,  that 
the  insurance  which  a  person  has  on  property  is  not  an  inter- 
est in  the  property  itself,  but  is  a  collateral  contract,  personal 
to  the  insured,  guarantying  him  against  loss  of  the  property 
by  fire  or  other  specified  casualty,  but  not  conferring  upon 
him  any  interest  in  the  property.  That  interest  he  has  al- 
ready, by  virtue  of  his  ownership.  If  it  were  not  for  a  rule  of 
public  policy  against  wagers,  requiring  insurance  to  be  for 
indemnity  merely,  he  could  just  as  well  take  out  insurance  on 
another's  property  as  on  his  own ;  and  it  is  manifest  that  this 
would  give  him  no  interest  in  the  property.  He  would  have 
an  interest  in  the  event  of  its  destruction  or  nondestruction, 
but  no  interest  in  the  property.  A  man's  interest  in  property 
insured  is  so  distinct  from  the  insurance  that,  unless  he  has 
such  an  interest  independent  of  the  insurance,  his  policy  will 
be  void." 


PROCEDURE— TIME    FOR    TAKING   ADVANTAGE    OF 

STATUTE. 

172.  The  owner  may  take  advantage  of  the  statute 
at  any  time  before  he  is  actually  compelled 
to  pay  the  money. 

.Under  the  American  practice,  he  may  contest  his  liability 
for  any  damages  at  all,  fight  that  through  all  the  courts, 


§    173)  PROCEDURE.  329 

and,  if  finally  defeated,  take  advantage  of  the  statute.1  But 
if  there  is  only  one  claim,  it  is  better  to  set  up  the  right  to 
limit  liability  in  the  original  suit,  as  there  is  some  conflict  of 
decision  on  the  question  whether  an  independent  proceeding 
will  lie  on  only  one  claim.2 

SAME— DEFENSE  TO  SUIT  AGAINST  OWNER,  OR  IN- 
DEPENDENT PROCEEDING. 

173.  The  statute  may  be  set  up  either  by  defense 
to  a  suit  brought  against  the  owner, 
or  by  an  independent  proceeding  under  the 
federal  admiralty  rules. 

If  it  is  desired  to  defend  simply  against  one  claim,  the  sim- 
plest method  of  doing  so  is  by  answer  or  plea  in  the  suit 
asserting  that  claim  against  the  owner.  Hence  it  is  well  set- 
tled that  this  is  a  proper  mode  of  taking  advantage  of  the 
statute,  and  it  may  be  invoked  either  in  the  federal  or  state 
courts.1 

Where  the  claims  are  many,  and  it  is  desired  to  convene 
them  all  in  one  proceeding,  the  usual  method  is  by  petition 
in  the  federal  court.  The  procedure  on  these  petitions  is 
regulated  by  Admiralty  Rules  54-58.* 

This  petition  may  be  filed  even  before  any  suit  is  brought  at 
all  against  the  owner.8 

§  172.  iTHE  BENEFACTOR,  103  U.  S.  239,  26  L.  Ed.  351; 
The  S.  A.  McCaulley  (D.  C)  90  Ferl.  302. 

2  The  Eureka  (D.  C.)  108  Fed.  672. 

§  173.  1  THE  SCOTLAND,  105  U.  S.  24,  26  L.  Ed.  1001;  The 
Great  Western,  118  U.  S.  520,  G  Sup.  Ct.  1172,  30  L.  Ed.  156;  Loughin 
v.  McCaulley,  186  Pa.  517,  40  Atl.  1020,  48  L.  R.  A.  33. 

2  As  this  treatise  is  on  admiralty  jurisdiction,  and  can  only 
cursorily  allude  to  procedure,  the  discussion  of  procedure  on  this 
act  will  necessarily  be  very  brief.  The  reader  is  referred  to  the 
excellent  treatise  of  Mr.  Benedict  on  Admiralty  for  further  details 
of  procedure. 

»  Ex  parte  Slay  ton,  105  U.  S.  451,  26  L.  Ed.  1066. 


330  RIGHTS    AND    LIABILITIES    OF    OWNERS.  (Ch.    16 

If  suits  are  pending  against'the  owner  in  other  jurisdic- 
tions, the  proceeding  in  the  admiralty  court  is  exclusive; 
and  litigants  in  the  other  courts  may  be  enjoined  from  litigat- 
ing further  in  those  courts,  and  may  be  compelled  to  come 
into  the  admiralty  court.  This  is  one  of  the  cases  in  which 
injunctions  to  proceedings  in  state  courts  are  not  forbidden 
by  section  720  of  the  Revised  Statutes.4 

METHOD  OF  DISTRIBUTION. 

174.  Under  the  express  provisions  of  the  statute, 
all  claims  filed,  whether  they  have  an  ad- 
miralty lien  attached  or  are  mere  personal 
claims  against  the  owner,  are  paid  pro  rata.1 

This  pro  rata  rule  applies  simply  to  the  claims  on  the 
voyage,  which,  as  seen  above,  is  taken  as  the  unit.  Ques- 
tions of  priority  as  between  those  claims  and  claims  on  other 
voyages  cannot  well  arise  in  the  proceeding ;  for  it  has  been 
seen  that,  when  the  owner  seeks  the  benefit  of  the  statute, 
he  must  surrender  the  res  clear  of  all  prior  liens  or  claims 
against  it.  Hence,  under  this  procedure,  the  court  has  in  its 
possession  an  unincumbered  res,  and  divides  that  pro  rata 
among  those  who  have  suffered  on  that  special  voyage,  re- 
gardless of  the  marshaling  of  other  claims  which  would  take 
place  if  no  proceeding  for  limitation  of  liability  was  pending. 

*  PROVIDENCE  &  N.  Y.  S.  S.  CO.  v.  MANUFACTURING  CO., 
109  U.  S.  578,  3  Sup.  Ct.  379,  617,  27  L.  Ed.  1038;  In  re  Whitelaw 
(D.  C.)  71  Fed.  733,  735. 

§  174.  1  The  Maria  &  Elizabeth  (D.  C.)  12  Fed.  627;  The  Cats- 
kill  (D.  C.)  95  Fed.  700;  The  St.  Johns  (D.  C.)  101  Fed.  469;  Gla- 
holm  v.  Barker,  L.  R.  2  Eq.  598;    Id.,  1  Ch.  App.  223. 


§    175)        RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.  331 

CHAPTER  XVII. 

OF  THE  RELATIVE  PRIORITIES  OF  MARITIME  CLAIMS. 

175.  Relative  Rank  as  Affected  by  Nature  of  Claims. 
176-177.  Contract  Claims  in  General. 

178.  Seamen's  Wages. 

179.  Salvage. 

180.  Materials,  Supplies,  Advances,  Towage,  Pilotage,  and 

General  Average. 

181.  Bottomry. 

182.  Mortgages. 

183.  Tort  Claims. 

184.  Relative  Rank  as  Affected  by  Dates  of  Claims— Among 

Claims  of  Same  Character. 

185.  Among  Claims  of  Different  Character. 

186.  Between  Contract  and  Tort  Claims. 

187.  Between  Two  Tort  Claims. 

188.  Relative  Rank  as  Affected  by  Suit  or  Decree. 

RELATIVE  RANK  AS  AFFECTED  BY  NATURE  OF 

CLAIMS. 

175.  The    order  in  which  liens    are  paid   depends 
upon  four  contingencies  : 

(a)  The  relative  merit  of  the  claims. 

(b)  The  time  at  which  the  claim  accrued. 

(c)  The  date  at  which  proceedings  are  commenced 

for  its  enforcement. 

(d)  The  date  of  the  decree. 

The  question  of  the  relative  rank  of  maritime  claims  is  the 
subject  of  much  conflicting  decision,  from  which  it  is  impossi- 
ble to  extract  any  inflexible  general  rule.  While  there  are 
elementary  principles  underlying  the  doctrine,  they  may  be 
affected  at  any  time  by  special  equities  or  circumstances  su- 
perseding the  general  principles,  and  forming  an  exception  to 


332  RELATIVE    PRIORITIES    OF   MARITIME    CLAIMS.       (Ch.   17  * 

them.  On  this  subject,  Judge  Brown,  when  District  Judge 
of  the  Eastern  District  of  Michigan,  well  said  in  the  case 
of  THE  CITY  OF  TAWAS : * 

"The  subject  of  marshaling  liens  in  admiralty  is  one 
which,  unfortunately,  is  left  in  great  obscurity  by  the  au- 
thorities. Many  of  the  rules  deduced  from  the  English  cases 
seem  inapplicable  here.  So,  also,  the  principles  applied 
where  the  contest  is  between  two  or  three  libelants  would  re- 
sult in  great  confusion  in  cases  where  50  or  60  libels  are  filed 
against  the  same  vessel.  The  American  authorities,  too,  are 
by  no  means  harmonious,  and  it  is  scarcely  too  much  to  say 
that  each  court  is  a  law  unto  itself." 

SAME— CONTRACT  CLAIMS  IN  GENERAL. 

176.  Claims  must   first  be  considered   in    reference 

to  their  general  nature,  as  there  is  sup- 
posed to  be  an  inherent  merit  in  certain 
ones  over  others,  in  the  absence  of  special 
equities  arising  from  the  comparative  dates 
of  their  service  and  other  considerations. 

177.  Among   contract   claims  in  general  the  order 

of  rank  may  be  stated: 

(a)  Seamen's  -wages. 

(b)  Salvage. 

(c)  Materials,    supplies,  advances,  towage,  pilot- 

age, and  general  average. 

(d)  Bottomry. 

(e)  Mortgages. 

S  175.     1  (D.   C.)  3  Fed.   170. 


§   178)        KANK    AS    AFFECTED    BY    MATURE    OF    CLAIMS.  333 


SAME— SEAMEN'S  WAGES. 

178.  It  has  long  been  a  favorite  principle  of  the 
admiralty  that  seamen's  wages  are  of  the 
highest  rank  and  dignity,  adhering  to  the 
last  plank  of  a  ship,  and  ranking  all  other 
contract  claims  of  the  same  relative  dates. 

In  the  case  of  The  Virgo,1  District  Judge  Benedict,  in  pass- 
ing upon  their  rank  as  compared  to  salvage  and  other  sup- 
plies, held  them  to  rank  even  supplies  furnished  after  the 
vessel  was  brought  into  port  and  after  the  wages  had  ac- 
crued, as  the  supplies  were  of  a  nature  that  did  not  add 
anything  to  the  value  of  the  vessel,  and  as  the  time  was  so 
short  that  the  seamen  could  hardly  have  been  responsible 
for  not  proceeding  more  promptly.    In  the  opinion  he  says : 

"I  am  of  the  opinion,  therefore,  that  the  wages  of  the 
seamen,  which  are  nailed  to  the  last  plank  of  the  ship,  and 
which  under  no  circumstances  contributed  to  the  general  av- 
erage, as  well  as  the  salvage  demand,  are  entitled  to  priority 
in  payment  over  the  demands  of  the  other  libelants,  no  one 
of  whom,  it  will  be  observed,  in  any  degree  added  by  their 
services  to  the  value  of  the  vessel,  or  in  the  slightest  degree 
increased  the  fund  realized  from  her  sale.  It  is  a  case  of 
some  hardship  to  the  material  men,  no  doubt,  but  no  greater 
than  in  the  ordinary  case  where  the  vessel  proves  insufficient 
in  value  to  pay  her  bills.  The  hardship  in  this  case  arises, 
not  from  any  fault  on  the  part  of  the  salvors  or  the  seamen, 
but  from  the  fact  that  the  material  men  furnished  what  they 
did  to  a  vessel  so  largely  incumbered  by  liens  superior  in 
grade  to  their  demands." 

In  the  case  of  The  Paragon,2  Judge  Ware  said: 

"Among  privileged  debts  against  a  vessel,  after  the  ex- 

§  178.     i  (1).  0.)  46  Fed.  lh.M. 

2 1  Ware,  320,  Fed.  Cas.  .\u.  10,708. 


oo-i  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Cll.    17* 

penses  of  justice  necessary  to  procure  a  condemnation  and 
sale,  and  such  charges  as  accrue  for  the  preservation  of  the 
vessel  after  she  is  brought  into  port  (i  Valin,  Comm.  362; 
Code  Commer.  No.  191),  the  wages  of  the  crew  hold  the 
first  rank,  and  are  to  be  first  paid.  And  so  sacred  is  this 
privilege  held  that  the  old  ordinances  say  that  the  savings 
of  the  wreck,  are  to  the  last  nail,  pledged  for  their  payment. 
Consulat  de  la  Mer,  c.  138;  Cleirac  sur  Jugemens  d'Oleron, 
art.  8,  note  31.  And  this  preference  is  allowed  the  seamen 
for  their  wages  independently  of  the  commercial  policy  of 
rewarding  their  exertions  in  saving  the  ship,  and  thus  giv- 
ing them  an  interest  in  its  preservation.  The  priority  of 
their  privilege  stands  upon  a  general  principle  affecting  all 
privileged  debts ;  that  is,  among  these  creditors  he  shall 
be  preferred  who  has  contributed  most  immediately  to  the 
preservation  of  the  thing.  2  Valin,  Comm.  12,  liv.  3,  tit.  5, 
art.  10.  It  is  upon  this  principle  that  the  last  bottomry  bond 
is  preferred  to  those  of  older  date,  and  that  repairs  and  sup- 
plies furnished  a  vessel  in  her  last  voyage  take  precedence  of 
those  furnished  in  a  prior  voyage,  and  that  the  wages  of  the 
crew  are  preferred  to  all  other  claims,  because  it  is  by  their 
labors  that  the  common  pledge  of  all  these  debts  has  been 
preserved,  and  brought  to  a  place  of  safety.  To  all  the  cred- 
itors they  may  say,  'Salvam  fecimus  totius  pignoris  causam.' 
The  French  law  (Ord.  de  la  Mar.  liv.  1,  tit.  14,  art.  16;  Code 
Commer.  191)  confines  the  priority  of  the  seamen  for  their 
wages  to  those  due  for  the  last  voyage,  in  conformity  with 
the  general  rule  applicable  to  privileged  debts ;  that  is,  that 
the  last  services  which  contribute  to  the  preservation  of  the 
thing  shall  be  first  paid.  But  this  restriction  is  inapplicable 
to  the  engagements  of  seamen  in  short  coasting  voyages, 
which  are  not  entered  into  for  any  determinate  voyage,  but 
are  either  indefinite  as  to  the  terms  of  the  engagement,  and 
are  determined  by  the  pleasure  of  the  parties,  or  are  for  some 
limited  period  of  time." 


§    179)        RANK    AS    AFFECTED    BY    NATURE    OF    CLAIMS.  335 

•  Wages  for  a  voyage  have  been  also  held  to  rank  a  bottom- 
ry bond  executed  for  the  necessities  of  that  very  voyage, 
because,  but  for  the  efforts  of  the  seamen,  the  vessel  would 
not  have  reached  port,  and  the  bottomry  bondholder  would 
have  had  nothing  to  hold  for  his  claim.8 

If  they  rank  subsequent  materials  under  the  circumstan- 
ces just  explained,  a  fortiori  they  rank  materials  and  sup- 
plies practically  concurrent  with  them.4 

They  also  rank  salvage,  and  even  damage  claims  incurred 
on  a  previous  voyage,  under  the  principle,  which  we  have 
seen  running  through  all  the  admiralty  law,  that  the  prior 
lienholders  have  a  jus  in  re  or  a  proprietary  interest  in  the 
ship  itself,  and  that  efforts  tending  to  the  preservation  of  the 
res  are  incurred  for  their  benefit,  and  therefore  rank  them.8 

SAME— SALVAGE. 

179.  Salvage  may  rank  any  prior  claim  for  which 
it  saves  the  res. 

It  may  not  be  entirely  accurate  to  put  salvage  behind  even 
seamen's  wages  when  we  consider  its  general  nature. 

It  is  well  settled  that  the  salvor  ranks  even  seamen's 
wages  incurred  prior  to  the  salvage  services,  upon  this  same 
general  principle  that  it  tends  to  the  preservation  of  the  res, 
without  which  the  seamen  themselves  might  lose  their  secu- 
rity.1 

In  the  leading  case  of  THE  FORT  WAYNE,2  the  court, 

»  THE  DORA  (C.  C.)  34  Fed.  348;  The  Irrua,  G  Ben.  1,  Fed.  Cas. 
No.  7,064. 

*  Baylor  v.  Taylor,  23  C.  C.  A.  343,  77  Fed.  470. 

oThe  Lillle  Laurie  (C.  O.)  50  Fed.  219. 

§  170.  i  The  Selina,  2  Notes  Cas.  Adm.  &  Ecc.  18;  The  Athenian 
(D.  C.)  3  Fed.  248. 

a  1  Bond,  470,  Fed.  Cas.  No.  3,012. 


336  RELATIVE    PRIORITIES   OF    MARITIME    CLAIMS.       (Ch.    17 

discussing  this  question,  and  deciding  that  salvage  was 
ahead  even  of  prior  seamen's  wages,  says : 

"It  may  be  remarked  here  that  it  does  not  admit  of  doubt, 
nor  is  it  controverted  in  this  case,  that,  if  there  had  been  a 
salvage  service  rendered  by  the  wrecking  company  within 
the  meaning  of  the  maritime  law,  it  imports  a  lien  in  their 
favor  which  has  priority  over  claims  for  wages  earned,  or 
supplies  furnished,  before  the  sinking  of  the  boat.  This  is 
well-established  law,  and  has  its  basis  in  obvious  principles  of 
justice  and  reason.  Meritorious  salvors  stand  in  the  front 
rank  of  privilege,  and  the  rights  of  those  having  liens  before 
the  salvage  service  must  be  secondary  to  those  having  a  sal- 
vage claim.  This  principle  is  well  stated  in  Coote's  Ad- 
miralty Practice.  The  author  says  (page  116):  'The  suitor 
in  salvage  is  highly  favored  in  law,  on  the  assumption  that, 
without  his  assistance,  the  res  might  have  been  wholly  lost. 
The  service  is,  therefore,  beneficial  to  all  parties  having 
either  an  interest  in  or  a  claim  to  the  ship  and  her  freight 
and  cargo.'  And  again  (page  117),  it  is  laid  down  that  'sal- 
vage is  privileged  before  the  original  or  prior  wages  of  the 
ship's  crew,  on  the  ground  that  they  are  saved  to  them  as 
much  as,  or  eadem  ratione  qua,  the  ship  is  saved  to  the 
owners.'  This  doctrine  is  so  well  settled,  both  by  the  Eng- 
lish and  American  authorities,  that  it  is  useless  to  multiply 
citations." 

For  the  same  reason  salvage  is  superior  in  dignity  to  ma- 
terials and  supplies.3 

It  is  also  ahead  of  the  cargo's  claim  for  general  average 
arising  out  of  a  jettison  on  the  voyage  when  the  vessel  was 
subsequently  wrecked,  for  the  reason  that  the  salvor  saved 
the  only  property  against  which  the  claim  for  general  aver- 
age could  be  asserted.4 

3  The  M.  Vandercook  (D.  0.)  24  Fed.  472;  The  Virgo  (D.  C.)  46 
Fed.  294;   The  Lillie  Laurie  (C.  C.)  50  Fed.  219. 

*  The  Spaulding,  1  Brown,  Adra.  310,  Fed.  Cas.  No.  13,215. 


§    180)        RANK    AS    AFFECTED    BY    NATURE    OF    CLAIMS. 


337 


Judge  Longyear,  in  delivering  the  opinion,  says: 
"It  was  conceded  on  the  argument,  and  such  is  undoubt- 
edly the  law,  that  the  lien  for  salvage  takes  precedence  of  the 
lien  for  general  average.  The  libel  of  the  insurance  com- 
panies in  this  case  is  in  terms  for  general  average,  and  I 
can  see  nothing  in  the  circumstances  of  the  case  to  war- 
rant the  court  in  holding  it  to  be  anything  else,  even  if  the 
libel  had  been  otherwise.  Without  the  salvage  services,  the 
whole  was  a  loss.  With  the  salvage  services,  the  loss  is 
reduced  to  a  part  only.  In  the  former  case  there  would 
have  been  nothing  left  upon  which  a  lien  for  general  aver- 
age could  attach.  In  the  latter  case  it  has  something  upon 
which  it  may  attach,  solely  because  of  the  salvage  services ; 
and  it  would  be  not  only  contrary  to  the  general  rule  of  law 
above  stated,  but  unjust  and  inequitable,  to  place  such  lien 
as  to  the  part  thus  saved  upon  the  same  footing,  as  to 
precedence,  as  the  lien  for  the  salvage  services." 

SAME— MATERIALS,    SUPPLIES,    ADVANCES,    TOW- 
AGE, PILOTAGE,  AND  GENERAL  AVERAGE. 

180.  Materials,  supplies,  advances,  towage,  pilot- 
age, and  genaral  average  are,  in  the  ab- 
sence of  special  circumstances,  equal  in 
dignity. 

These  may  be  considered  in  general  as  of  the  same  relative 
rank,  in  the  absence  of  special  circumstances  or  equities. 

For  some  time  there  was  quite  a  conflict  in  the  decisions 
on  the  question  whether  the  liens  of  material  men  arising  out 
of  a  state  statute  were  equal  in  dignity  to  those  arising  under 
the  general  admiralty  law.  On  principle  there  would  seem 
to  be  no  sound  reason  for  any  such  distinction.  The  only 
reason  why  these  state  statutes  are  given  force  at  all  is  that 
the  subject-matter  is  maritime  in  its  nature,  and  that  the 
Utes  merely  superadd  the  remedy  in  rem.     If  marine  in  its 

HUQHBS.AD.— 22 


338  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17* 

nature,  it  ought  to  be  marine  in  its  rights.  The  state  stat- 
ute adds  nothing  to  its  dignity  or  to  its  character.  It  merely 
changes  a  presumption  of  credit.  Hence  the  later  authori- 
ties have  settled  that  foreign  and  domestic  liens  of  material 
men  rank  alike.1 

Claims  of  this  nature  also  rank  a  prior  bottomry.  In  the 
case  of  The  Jerusalem,2  Mr.  Justice  Story  gives  the  reason 
for  this.    He  says : 

"If,  then,  the  repairs  in  this  case  were  a  lien  on  the  ship, 
it  remains  to  consider  whether  they  constitute  a  privileged 
lien,  entitled  to  a  preference  over  a  bottomry  interest ;  for 
the  proceeds  now  in  court  are  insufficient  to  answer  both 
claims.  In  point  of  time  the  bottomry  interest  first  attached, 
and  the  right  became  absolute  by  a  completion  of  the  voyage 
before  the  repairs  were  made.  Upon  general  principles, 
then,  the  rule  would  seem  to  apply,  'Qui  prior  est  tempore, 
potior  est  jure.'  But  it  is  to  be  considered  that  the  repairs 
were  indispensable  for  the  security  of  the  ship,  and  actually 
increased  her  value.  They  are,  therefore,  not  like  a  dry 
lien  by  way  of  mortgage,  or  other  collateral  title.  The  case 
is  more  analogous  to  that  of  a  second  bottomry  bond,  or  the 
lien  of  seamen's  wages,  which  have  always  been  held  to  have 
a  priority  of  claim,  although  posterior  in  time,  to  the  first 
bottomry  bond.  Let  a  decree  be  entered  for  payment  of 
the  sum  claimed  by  the  petitioner  out  of  the  proceeds  of  the 
sale." 

In  the  case  of  The  Felice  B.,8  Judge  Benedict  gave  prefer- 
ence, under  similar  circumstances,  because  the  repairs  went 
into  the  ship,  and  tended  to  increase  her  value,  and  to  en- 
hance to  that  extent  the  price  which  she  brought  at  auction ; 
and  he  therefore  thought  it  inequitable  that  the  bottomry 

§  180.     i  The  Guiding  Star  (D.  C.)  9  Fed.  521;   Id.  (C.  0.)  18  Fed. 
264;   The  Wyoming  (D.  0.)  35  Fed.  548. 
*2  Gall.  345,  Fed.  Cas.  No.  7,294. 
« (D.  C.)  40  Fed.  653.     See,  also,  The  Aina  (D.  0.)  40  Fed.  269. 


§    1S1)        RANK    AS    AFFECTED    BY    NATURE    OF   CLAIMS.  339 

bond  holder  should  claim  this  increment,  which  was  not  in 
existence  when  he  loaned  his  money. 

As  to  the  relative  rank  of  claims  for  unpaid  towage  and 
claims  of  material  men,  there  would  seem  to  be  no  reason 
for  drawing  any  distinction  between  them,  in  the  absence  of 
special  equities,  and  the  courts  have  usually  put  them  upon 
the  same  basis.4 

But  in  the  case  of  The  Mystic,5  Judge  Blodgett  seemed  to 
look  upon  tugboat  men  with  special  favor.  The  case  arose 
in  the  city  of  Chicago,  where  the  ordinances  required  vessels 
to  use  tugs,  and  where,  on  account  of  the  narrow  and 
crowded  channels,  it  is  a  physical  impossibility  for  sail  ves- 
sels to  reach  their  destination  without  tugs.  Under  these 
special  circumstances  he  held  that  the  value  of  the  towage 
service  was  about  equal  to  that  of  the  seamen,  as  the  tug 
was  doing  seamen's  work,  and  he  placed  the  tow  bills  imme- 
diately after  the  seamen's  wages,  and  ahead  of  domestic  sup- 
ply claims. 

SAME— BOTTOMRY. 

181.  Bottomry  ranks  low  aniong  maritime  claims, 
as  the  lender  is  paid  for  the  risk  he  runs 
by  a  high  rate  of  interest. 

Among  bottomry  bonds  on  the  same  voyage,  though  the 
dates  may  be  slightly  different,  there  is  no  priority.1  But 
the  bottomry  bond  holder  is  relegated  to  the  background 
when  he  comes  in  competition  with  seamen's  wages,  sal- 
vage, materials,  or  even  a  claim  for  general  average  arising 
on  the  same  voyage.2  The  reason  is  that  the  bottomry  hold- 
er stands  in  the  shoes  of  the  owner,  and  has,  as  heretofore 

*  Saylor  v.  Taylor,  23  C.  C.  A.  343,  77  Fed.  47G;  The  Sea  Witch, 
3  Woods,  75,  Fed.  Cas.  No.  11,289. 
o  (D.  C.)  30  Fed.  ?:;. 

§  181.     i  THE  DOUA  (D.  C.)  34  Fed.  343. 
aid. 


340  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17 

explained,  a  proprietary  interest  in  the  ship,  which  estops 
him  from  questioning  the  priority  of  maritime  liens  to  supply 
her,  or  to  render  her  more  valuable.  In  addition,  the  bot- 
tomry holder  can  charge  a  premium  on  the  ship  at  a  high 
rate  of  interest.  He  therefore  becomes  practically  an  insurer 
against  perils  of  the  sea,  and  when  those  perils  of  the  sea 
arise  he  cannot  be  heard  to  complain  that  those  who  labored 
to  rescue  the  vessel  from  them  should  be  preferred  in  the 
distribution.  Accordingly,  these  claims  for  general  average 
arising  on  the  voyage,  and  the  claims  of  the  agents  at  the 
port  of  destination  for  putting  the  ship  in  better  shape,  are 
preferred  to  a  bottomry  bond.  On  this  point  Judge  Billings 
says  in  the  case  of  The  Dora  :8 

"Whoever  lends  money  upon  a  bottomry  obligation  for 
the  ordinary  transactions  of  her  voyage  has  a  lien  upon  the 
vessel  which  outranks  all  lien  holders  save  the  mariners  for 
their  wages.  But  where  maritime  services  or  sacrifices  or 
expenditures  are  rendered  necessary  which  carry  with  them 
maritime  liens,  the  holder  of  the  bottomry  bond,  like  any 
other  mortgagee  or  pledgee,  has  his  conditional  interest  bur- 
dened precisely  as  if  he  were  to  that  extent  an  owner.  In- 
deed, the  bottomry  holder  can  be  no  more  than  absolute 
owner,  so  far  as  third  persons  are  concerned.  To  hold  any 
more  restricted  doctrine  would  prejudice  the  interests  of  the 
bottomry  holder  himself.  It  is  for  his  interest,  as  well  as  for 
that  of  all  other  absolute  or  conditional  owners,  that  the 
whole  should  be  saved  by  a  sacrifice  of  a  part,  and  that  the 
whole  thus  saved  should  contribute  to  make  good  the  sacri- 
fice, and  that  salvors  and  all  others  who  render  benefits 
which  save  or  render  available  the  bottom  pledged  to  him 
should  have  a  lien  upon  that  bottom,  even  against  him.  See 
Williams  &  B.  Adm.  Jur.  64,  65,  and  Macl.  Shipp.  702-705.  I 
think  that,  upon  reason  and  authority,  the  general  average 
should  be  paid  before  the  bottomry  bonds.     The  transac- 

*  See,  also,  THE  ALINE,  1  W.  Rob.  Adm.  112. 


§    1S3)         RA.NK    AS    AFFECTED    BY    NATURE    OF    CLAIMS.  34 i 

tions  out  of  which  the  general  average  arose  were  subsequent 
to  these  bonds,  and  aided  in  providing  and  making  available 
the  bottom  which  these  bonds  contingently  represented." 


SAME— MORTGAGES. 

182.  Mortgages  rank  below  all  maritime,  claims. 

The  mortgagee  is  worse  off  than  any,  for  his  claim  is  not 
marine.  He  merely  claims  through  the  owner,  from  whom 
he  is  only  one  step  removed,  and  accordingly  all  marine 
claims  are  preferred  to  his  debt ;  and  even  recording  it  un- 
der section  4192  of  the  Revised  Statutes  does  not  affect  this 
principle.1 

SAME— TORT  CLAIMS. 

183.  These  claims,  -whether  for  pure  torts  or  torts 

■where  there  are  also  contract  relations, 
rank  prior  contract  claims,  and  probably- 
subsequent  contract  claims,  -where  the  con- 
tract claimant  has  an  additional  remedy 
against  the  owner. 

These  claims,  as  a  general  rule,  rank  all  prior  contract 
claims.  The  leading  case  on  this  subject  is  THE  JOHN  G. 
STEVENS.1  Mr.  Justice  Gray,  in  delivering  the  opinion  of 
the  court  in  that  case,  says  : 

"The  collision,  as  soon  as  it  takes  place,  creates,  as  secu- 
rity for  the  damages,  a  maritime  lien  or  privilege, — jus  in  re, 
— a  proprietary  interest  in  the  offending  ship,  and  which, 
when  enforced  by  admiralty  process  in  rem,  relates  back  to 
the  time  of  the  collision.  The  offending  ship  is  considered 
as  herself  the  wrongdoer,  and  as  herself  bound  to  make  com- 

§  182.     1  THE  J.  E.  RUMBELL,  148  U.  S.  1,   IS  Sup.  Ct.  408,  37 
L.  Ed.  345. 
§  183.     1  170  U.  S.  113,  18  Sup.  Ct  544,   12  I..  Ed.  969. 


342  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17 

pensation  for  the  wrong  done.  The  owner  of  the  injured 
vessel  is  entitled  to  proceed  in  rem  against  the  offender, 
without  regard  to  the  question  who  may  be  her  owners,  or  to 
the  division,  the  nature,  or  the  extent  of  their  interests  in  her. 
With  the  relations  of  the  owners  of  those  interests,  as  among 
themselves,  the  owner  of  the  injured  vessel  has  no  concern. 
All  the  interests  existing  at  the  time  of  the  collision  in  the 
offending  vessel,  whether  by  way  of  part  ownership,  of  mort- 
gage, of  bottomry  bond,  or  of  other  maritime  lien  for  re- 
pairs or  supplies,  arising  out  of  contract  with  the  owners  or 
agents  of  the  vessel,  are  parts  of  the  vessel  herself,  and  as 
such  are  bound  by  and  responsible  for  her  wrongful  acts. 
Any  one  who  had  furnished  necessary  supplies  to  the  ves- 
sel before  the  collision,  and  had  thereby  acquired,  under 
our  law,  a  maritime  lien  or  privilege  in  the  vessel  herself, 
was,  as  was  said  in  The  Bold  Buccleugh,  before  cited,  of  the 
holder  of  an  earlier  bottomry  bond,  under  the  law  of  Eng- 
land, 'so  to  speak,  a  part  owner  in  interest  at  the  date  of 
the  collision,  and  the  ship  in  which  he  and  others  were 
interested  was  liable  to  its  value  at  that  date  for  the  injury 
done,  without  reference  to  his  claim.'     I  Moore,  P.  C.  285." 

This  reasoning  is  a  necessary  deduction  from  the  doctrine, 
now  well  settled,  that  an  admiralty  claimant  has  not  merely 
a  right  to  arrest  a  vessel,  but  a  proprietary  interest  in  the 
vessel  itself, — a  jus  in  re.  Consequently,  any  contract  claim- 
ant who  permits  the  vessel  against  which  he  has  a  claim 
to  be  navigated  assumes  the  risks  of  navigation  to  that 
extent,  and  holds  her  out  to  the  world  as  liable  to  those  with 
whom  she  is  brought  into  relations  even  involuntarily  on 
their  part.  The  only  question  directly  decided  in  this  case 
was  that  a  claim  for  damages  from  negligent  towage  rank- 
ed a  prior  claim  for  materials  and  supplies.  The  ques- 
tions as  to  all  other  contracts  were  carefully  reserved  by  the 
court,  but  the  line  of  reasoning  which  the  court  follows  is 
equally  applicable  to  any  other  contract  claim. 

On  this  question  the  decisions  in  the  New  York  circuit, 


§    183)        RANK    AS    AFFECTED    BV    NATURE    OF    CLAIMS.  343 

which  are  usually  of  such  high  authority  that  the  admiralty 
lawyer  instinctively  turns  to  them  first,  cannot  now  be  re- 
lied on.  THE  JOHN  G.  STEVENS  CASE  cites  a  great 
number  of  them  for  the  purpose  of  deciding  adversely  to  the 
doctrine  which  they  had  promulgated.  It  had  been  the 
preponderance  of  authority  in  that  circuit  that  contract 
claims  ranked  tort  claims.  The  principal  reason  given  for 
this  was  that  these  tort  claims  were  perils  of  the  sea,  against 
which  the  owner  could  insure.  In  arriving  at  that  decision 
the  New  York  judges  had  discussed  the  English  cases  on 
which  the  contrary  doctrine  had  been  based,  and  concluded 
that  they  had  not  passed  upon  the  question  at  all,  but  were 
governed  by  peculiar  circumstances  arising  out  of  the  fact 
that  the  vessels  in  the  English  cases  had  nearly  always 
been  foreign  vessels.  The  New  York  judges  also  had  at- 
tempted to  draw  a  distinction  between  claims  of  pure  tort 
and  claims  of  quasi  tort  arising  out  of  contract.  This  was 
to  meet  the  suggestion  of  Dr.  Lushington  in  THE  ALINE',2 
in  which  he  had  said  that  the  contract  creditor  had  his 
option  whether  to  deal  with  the  ship  or  not,  but  the  tort 
creditor  had  not.  Accordingly,  the  New  York  courts  ar- 
gued that  this  principle  could  only  apply  to  torts  like  col- 
lision, in  any  event,  and  could  not  apply  to  cases  arising 
out  of  negligent  towage,  or  other  such  cases  arising  out  of 
contract  though  torts  in  form  where  there  had  been  such 
negligence.  This  distinction,  also,  is  overruled  by  THE 
JOHN  G.  STEVENS  CASE,3  which  was  a  case  of  negligent 
towage,  and  in  which  the  supreme  court,  after  considering 
the  question  fully,  decided  that  cases  of  tort,  whether  arising 
out  of  contract  or  not,  all  stood  on  the  same  basis. 

THE  JOHN  G.  STEVENS  CASE  expressly  reserves 
the  question  whether  the  claim  for  tort  should  be  preferred 
to  a  prior  claim  for  seamen's  wages,  but  the  reasoning  of 

»  1  W.  Kob.  Adm.  112. 

«  170  U.  S.  113,  18  Sup.  Ct.  544,  42  L.  Ed.  9(39. 


344  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17 

that  case  applies  with  equal  force  even  to  claims  of  as  high 
merit  as  seamen's  wages,  and  it  is  believed  that,  when  the 
question  is  fairly  presented,  a  preference  will  be  given  to 
tort  claims  even  over  claims  for  prior  wages.4 

The  case  of  THE  ELIN6  decided  that  preference  should 
be  given  even  to  subsequent  wages  on  the  same  voyage. 
On  this  point  Sir  Robert  Phillimore  quoted  approvingly 
from  an  opinion  of  Dr.  Lushington,  as  follows : 

"I  adhere  to  this  opinion,  and  I  do  so  especially  for  the 
following  reasons:  That  by  the  maritime  law  of  all  the 
principal  maritime  states  the  mariner  has  a  lien  on  the  ship 
for  his  wages  against  the  owner  of  that  ship.  That  he  has 
also  a  right  of  suing  the  owner  for  wages  due  to  him.  That 
some  uncertainty  may  exist  as  to  the  mariner's  lien  when 
in  competition  with  other  liens  or  claims,  and  amongst  these 
I  might  instance  the  case  of  a  ship  in  the  yard  of  a  ship- 
wright. In  such  a  case  I  should  have  no  difficulty  in  say- 
ing that  the  lien  of  the  shipwright  would  be  superior  to  the 
lien  of  the  mariner.  That,  in  the  case  of  a  foreign  ship  doing 
damage  and  proceeded  against  in  a  foreign  court,  the  in- 
jured party  has  no  means  of  obtaining  relief  save  by  pro- 
ceeding against  the  ship  itself;  and  that,  I  apprehend,  is 
one  of  the  most  cogent  reasons  for  all  our  proceedings  in 
rem.  That,  in  a  case  where  the  proceeds  of  a  ship  are  in- 
sufficient to  compensate  for  damages  done,  to  allow  the 
mariner  to  take  precedence  of  those  who  have  suffered 
damage  would  be  to  exonerate  so  far  the  owner  of  the 
ship,  to  whom  the  damage  is  imputed,  at  the  expense  of 
the  injured  party, — the  wrongdoer  at  the  expense  of  him  to 
whom  wrong  has  been  done.  Then,  as  to  the  mariner, 
what  is  the  hardship  to  which  he  is  exposed?  It  is  true, 
he  is  debarred  from  proceeding  against  the  ship,  but  his 
right  to  sue  the  owner  remains  unaffected.  It  is,  however, 
not  to  be  forgotten  that  in  all  these  cases  of  damage,  or 

*  The  Freestone,  2  Bond,  234,  Fed.  Cas.  No.  12,143. 
6  8  Prob.  Div.  39. 


§    184)  RANK    AS    AFFECTED    BY    DATES    OF    CLAIMS.  345 

nearly  all,  the  cause  of  the  damage  is  the  misconduct  of  some 
of  the  persons  composing  the  crew.  This  is  not  the  case 
of  a  bankrupt  owner.  It  will  be  time  to  consider  such  case 
when  it  arises." 

This  reasoning,  that  the  seaman  has  a  double  remedy 
against  the  owner,  and  that  it  would  be  inequitable  to  al- 
low the  owner  to  practically  diminish  the  security  of  the 
party  injured  through  his  own  torts  by  allowing  the  sea- 
men to  be  paid  out  of  the  vessel,  is  certainly  a  strong  one, 
and  receives  added  strength  in  America  by  the  fact  that  the 
act  of  Tune  26,  1884,  allowing  the  vessel  owners  to  plead 
their  limitation  of  liability  against  contract  debts,  expressly 
reserves  the  rights  of  seamen;  and  so  it  would  seem  eq- 
uitable that  a  party  asserting  a  lien  by  tort  should  be  pre- 
ferred even  to  seamen's  wages,  though  the  question  can- 
not be  considered  as  settled. 

An  instance  of  such  torts  is  an  unlawful  conversion  by 
the  master.8 

RELATIVE     RANK     AS     AFFECTED    BY      DATES     OF 
CLAIMS— AMONG  CLAIMS  OF  SAME  CHARACTER. 

184.  Among  contract  claims  of  the  same  character, 
those  furnished  on  the  last  voyage  rank 
those  furnished  on  a  prior  voyage;  the  rea- 
son being  that  they  are  supposed  to  contrib- 
ute more  immediately  to  the  preservation 
of  the  res,  and  therefore  are  for  the  benefit 
of  the  prior  claims.1 

In  the  old  days,  when  voyages  were  measured  by  long 
periods  of  time,  this  was  a  just  rule;  but  now,  when  voy- 
ages are  comparatively  short,  it  has  been  found  necessary 

•  The  Escanaba  (D.  C.)  96  Fed.  252. 

S  184.  1  Til  10  OMER,  2  Bughes,  96,  Fed.  Oaa.  No.  10,510;  The 
Sea  Witch,  3  Woods,  75,  Fed.  ('as.  No.   L1.289. 


346  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17 

in  the  interest  of  justice  to  introduce  considerable  modifica- 
tions. For  instance,  in  litigation  arising  on  the  Lakes  the 
relative  priorities  are  determined  not  by  the  voyages,  but 
by  the  seasons  of  navigation.  For  several  months  of  the 
year  navigation  there  is  closed  by  ice,  and  the  courts  have 
settled  upon  the  rule  that  claims  furnished  during  one  sea- 
son rank  those  furnished  during  a  previous  season ;  and  this 
rule  is  applied  in  New  York  harbor  also  as  to  boats  which 
operate  by   seasons,   like   canal  boats.2 

But  in  New  York  harbor  work,  as  to  boats  which  are  be- 
ing used  practically  all  the  year  round,  the  courts  have  set- 
tled upon  the  rule  that  claims  furnished  within  forty  days 
are  preferred  to  those  furnished  prior  to  that  date,  the 
basis  of  the  rule  being  that  it  is  usual  to  sell  on  thirty  days' 
time,  the  ten  days  extra  being  allowed  for  making  demand 
or  proceeding.  As  among  claims  of  the  same  general  char- 
acter within  the  forty  days,  there  is  no  difference  in  rank.5 

In  the  Eastern  district  of  Virginia,  where  ice  does  not  in- 
terrupt navigation,  the  rule  of  voyages  has  been  applied 
when  the  voyages  were  of  any  length;  but  among  harbor 
tugs  or  vessels  the  practice  has  been  that  debts  of  the  same 
general  character  are  put  on  the  same  footing  if  they  have 
been  furnished  within  a  year.  The  question  in  that  district 
has  been  considered  mainly  in  reference  to  the  doctrine  of 
staleness.  A  claim  over  a  year  old  is  considered  stale  as 
against  other  admiralty  claims,  and  all  within  a  year  are 
placed  upon  the  same  general  footing.  There  is  no  re- 
ported decision  to  this  effect,  but  it  has  long  been  a  settled 
rule  of  practice  in  that  district. 

This  rule  of  considering  claims  over  one  year  old  as  stale, 
however,  has  only  been  applied  in  that  district  as  among 
marine  claims,  and  must  not  be  confused  with  the  doctrine 

2  THE  CITY  OF  TAW  AS  (D.  C.)  3  Fed.  170;  The  Arcturus  (D.  C.) 
18  Fed.  743;   The  J.  W.  Tucker  (D.  C.)  20  Fed.  129. 

3  The  Gratitude  (D.  C.)  42  Fed.  299;  The  Samuel  Morris  (D.  C.) 
C3  Fed.  73U. 


£    18-5)  RANK    AS    AFFECTED    BY    DATES    OF    CLAIMS.  347 

of  staleness  as  applied  in  relation  to  subsequent  purchasers. 
In  such  case,  in  that  district,  claims  have  been  held  stale  as 
against  innocent  purchasers  in  much  less  time  than  a  year. 
On  the  other  hand,  the  one-year  rule  as  among  maritime 
claims  has  frequently  been  relaxed,  and  the  time  extended, 
where  the  vessel  has  been  absent  from  the  district  for  long 
periods. 

SAME— AMONG  CLAIMS  OF  DIFFERENT  CHARACTER. 

185.  A  later  service  immediately  contributing  to 
the  preservation  of  the  res  may,  on  that  ac- 
count, be  preferred  to  claims  which  other- 
wise would  rank  it. 

The  last  may  sometimes  be  preferred  on  that  account 
even  though,  if  the  dates  were  the  same,  the  one  so  prefer- 
red would  be  an  inferior  claim.  For  instance,  in  the  case  of 
THE  FORT  WAYNE,1  a  claim  for  repairs  to  the  vessel 
rendered  when  salvors  had  taken  charge  of  her  after  a  dis- 
aster (the  repairs  being  of  a  character  almost  necessary  to 
enable  her  to  reach  port)  was  preferred  even  to  prior  wages, 
and  was  made  to  rank  next  to  the  salvage.  On  this  point 
the  court  says : 

"I  can  have  no  hesitation,  therefore,  in  holding  that  the 
claim  of  the  Eureka  Insurance  Company  is  established  by 
the  evidence,  and  is  a  lien  on  the  boat,  ranking  in  privilege 
next  to  the  salvage  claim  of  the  Missouri  Wrecking  Com- 
pany. This  lien  rests  on  the  footing  of  money  loaned  or 
advanced  for  repairs  to  the  boat,  without  which  it  would 
have  been  of  little  value,  and  could  not  possibly  have  pros- 
ecuted its  business.  The  money  so  advanced  and  applied 
may  be  supposed,  therefore,  to  have  inured  to  the  benefit 
of  prior  lienholders.  And,  according  to  the  doctrine  dis- 
tinctly asserted  by  Dr.  Lushington  in  the  case  of  The  Aline, 

§  185.    il  Bond,  470,  Fed.  Gas.  No.  3,012. 


3iS  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17 

I  \V.  Rob.  Adm.  119,  120,  the  persons  making  such  advances 
have  a  priority,  to  the  extent  of  the  repairs  made,  over  all 
other  lienholders.  But  the  case  before  me  does  not  call 
for  a  more  extended  exposition  of  this  principle." 

For  similar  reasons  a  material  man's  claim  has  been  pre- 
ferred to  a  prior  towage  claim.2 

SAME— BETWEEN  CONTRACT  AND   TORT  CLAIMS. 

186.  On   this  account  a  later  contract   claim  may- 

rank  a  prior  tort  claim. 

An  interesting  illustration  of  this  was  The  Jeremiah.1 
There  salvors  rescued  a  vessel  which  had  been  in  collision, 
and  was  so  hung  to  the  other  vessel  that  it  required  some 
force  to  get  them  apart.  The  court  held,  that  the  salvage 
claim  had  priority  over  the  collision  claim. 

So,  too,  in  THE  ALINE,2  Dr.  Lushington,  while  prefer- 
ring, as  we  have  heretofore  seen,  the  tort  claims  to  a  prior 
bottomry  bond,  held  also  that  a  bottomry  bond  for  supplies 
subsequently  furnished  ranked  the  tort  claim,  for  the  rea- 
son that  the  tort  claim  could  only  go  against  the  vessel  as 
it  was  at  the  time  of  the  collision,  and  had  no  right  to  sub- 
ject a  subsequent  increment  to  the  vessel  like  this. 

SAME— BETWEEN  TWO  TORT  CLAIMS. 

187.  Bet-ween  two  tort  claims,  the  last  should  rank; 

but  this  is  not  settled. 

An  interesting  case  on  this  subject  was  THE  FRANK 
G.  FOWLER.1  In  that  case  there  were  two  successive 
collisions  so  close  together  that  no  question  of  laches  could 

2  The  Dan  Brown,  9  Ben.  309,  Fed.  Cas.  No.  3,556. 

§  186.     1  10  Ben.  338,  Fed.  Cas.  No.  7,290. 

2  1  W.  Rob.  Adm.  112. 

§  187.     1  (D.  C.)  8  Fed.  331;  Id.  (C.  C.)  17  Fed.  653. 


§    187)  RANK    AS    AFFECTED    BY    DATES    OF    CLAIMS.  349 

well  arise  between  the  two.  Under  such  circumstances  Dis- 
trict Judge  Choate  held  that  the  last  was  entitled  to  priority, 
as  the  first  collision  claim  had  a  jus  in  re,  or  a  proprietary 
interest,  in  the  vessel,  and  therefore  was  somewhat  in  the 
position  of  an  owner.     In  his  opinion  he  says : 

"A  party  who  has  already  suffered  such  a  damage  has 
such  a  lien  or  hypothecation  of  the  vessel.  He  is  to  that 
extent  in  the  position  of  an  owner, — he  has  a  quasi  pro- 
prietary interest  in  the  vessel.  It  is  true,  he  cannot,  as  an 
owner,  control  her  employment,  or  prevent  her  departure 
on  another  voyage,  except  by  the  exercise  of  his  right  or 
power  to  arrest  her  for  the  injury  to  himself;  and  in  some 
cases  the  second  injury  may  be  done  before  he  has  an  op- 
portunity to  arrest  her.  Yet,  if  her  continued  employment 
is  not  his  own  voluntary  act,  nor  with  his  own  consent,  it 
is  his  misfortune  that  the  vessel  in  which  he  has  an  interest 
is  used  in  a  manner  to  subject  herself  to  all  the  perils  of 
navigation.  This  use,  unless  he  intervenes  to  libel  and  ar- 
rest her,  is  perfectly  lawful  as  against  him.  If  she  is  lost 
by  shipwreck,  of  course  his  lien  becomes  valueless,  and  I 
think  his  interest  is  not  exempted  from  this  other  peril  to 
which  the  vessel  is  liable,  namely,  that  she  may  become 
bound  to  any  party  injured  through  the  torts  of  the  master 
and  mariners.  The  principle  as  to  marine  torts  is  that  the 
ship  is  regarded  as  the  offending  party.  She  is  liable  in  solido 
for  the  wrong  done.  The  interests  of  all  parties  in  her  are 
equally  bound  by  this  lien  or  hypothecation,  whether  the 
master  and  mariners  are  their  agents  or  not.  In  the  case 
of  The  Aline,  i  W.  Rob.  Adm.  118,  Dr.  Lushington  says: 
'I  am  also  of  opinion  that  neither  the  mortgagee  nor  bot- 
tomry bondholder  could  be  a  competitor  with  the  suc- 
cessful suitor  in  a  cause  of  damage,  and  for  this  reason  that 
the  mortgage  or  bottomry  bond  might,  and  often  does,  ex- 
tend to  the  whole  value  of  the  ship.  If,  therefore,  the  ship 
was  not  first  liable  for  the  damage  she  had  occasioned, 
the  person  receiving  the  injury  might  be  wholly  without   a 


350  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.   11 

remedy;  more  especially  where,  as  in  this  case,  the  dam- 
age is  done  by  a  foreigner,  and  the  only  redress  is  by  a 
proceeding  against  the  ship.'  Commenting  on  this  decision 
in  the  case  of  The  Bold  Buccleugh,  ut  supra,  the  court 
says :  'In  that  case  there  was  a  bottomry  bond  before  and 
after  the  collision,  and  the  court  held  that  the  claim  for 
damage  in  a  proceeding  in  rem  must  be  preferred  to  the 
first  bondholder,  but  was  not  entitled,  against  the  second 
bondholder,  to  the  increased  value  of  the  vessel  by  reason 
of  repairs  effected  at  his  cost.  The  interest  of  the  first 
bondholder  taking  effect  from  the  period  when  his  lien  at- 
tached, he  was,  so  to  speak,  a  part  owner  in  interest  at  the 
date  of  the  collision,  and  the  ship  in  which  he  or  others 
were  interested  was  liable  to  its  value  at  that  date  for  the 
injury  done,  without  reference  to  his  claim.'  I  think  the 
same  principle  is  applicable  to  a  prior  lienholder,  who,  by 
the  tort  of  the  master  and  mariners,  had  become,  so  to 
speak,  a  part  owner  in  the  vessel.  His  property, — the  ves- 
sel,— though  not  by  his  own  voluntary  act,  has  been  used 
in  commerce.  That  use  was  not  tortious  as  to  him.  It  is 
subject  in  that  use  to  all  ordinary  marine  perils.  One  of 
those  marine  perils  is  that  it  may  become  liable  to  respond 
to  another  party  injured  by  the  negligence  of  the  master 
and  mariners.  No  exception  to  the  liability  of  the  vessel,  ex- 
empting the  interests  of  parties  interested  in  the  ship,  has 
been  established  by  authority." 

On  appeal  to  Circuit  Judge  Blatchford  this  decision  was 
reversed,  the  judge  holding  that  the  doctrine  of  the  last  be- 
ing paid  first  only  applied  to  such  liens  as  were  for  the  ben- 
efit of  the  vessel,  and  tend  to  the  preservation  of  the  res, 
and  did  not  apply  to  torts,  which  tend  rather  to  destroy 
than  to  benefit. 

If  the  principles  laid  down  by  the  supreme  court  in  THE 
JOHN  G.  STEVENS  CASE'  are  to  be  the  guide,  it  would 
seem  that  the  district  judge  was  the  one  who  should  be  fol- 
lowed.    When  we  once  settle  the  doctrine  that  a  maritime 


§    188)  RANK    AS    AFFECTED    BY    SUIT    OR    DECREE.  351 

Hen  is  a  jus  in  re,  or  a  proprietary  interest  in  the  ship,  it 
would  seem  to  follow  necessarily  that  the  owner  of  that 
interest,  even  if  not  guilty  of  laches,  and  even  if  having  no 
control  over  the  master  in  charge,  impliedly  takes  the  risks 
of  subsequent  accidents,  and  holds  the  ship  out  to  the  world 
as  a  thing  of  life,  liable  to  make  contracts  and  to  commit 
torts,  and  that  he  should  not  be  heard  to  dispute  the  claims 
of  others  who  have  been  brought  into  relations  with  her 
upon  this  basis. 

RELATIVE  RANK  AS  AFFECTED  BY  SUIT  OR  DE- 
CREE. 

188.  The  earlier  decisions  held  that  among  claims 
of  otherwise  equal  dignity  the  party  first 
libeling  -was  entitled  to  be  first  paid,  on 
the  theory  that  an  admiralty  lien  was  a 
mere  right  of  arrest ;  but  the  later  deci- 
sions, establishing  it  as  a  proprietary  right 
or  interest  in  the  thing  itself,  have  deduced 
from  that  principle  that  a  prior  petens  has 
no  advantage,  and  that  the  institution  of 
suit  does  not  affect  the  relative  rank  of 
liens.1 

In  fact  in  many  districts  obtaining  a  decree  does  not  give 
an  inferior  claim  a  priority  which  it  would  not  otherwise 
have,  but  merely  entitles  the  claimant  to  assert  his  claim 
without  further  proof,  and  debars  others  from  contesting  it 
on  its  merits,  leaving  open  simply  the  question  of  priority. - 

This  is  a  question  largely  affected  by  local  practice  and 
local  rules.     In  many  districts  independent  libels  are  filed 

|  188.  iTHE  CITY  OF  TAWAS  (D.  C.)  3  Fed.  170;  The  J.  W. 
Tucker  (D.  C.)  20  Fed.  129;  Saylor  v.  Taylor,  23  C.  C.  A.  848,  77 
Fed.  476. 

-  THE  CITY  OF  TAWAS  (D.  C.)  3  Fed.   170;   The  Aina  (I).  0 
Fed.  209. 


352  RELATIVE    PRIORITIES    OF    MARITIME    CLAIMS.       (Ch.    17 

against  the  vessel.  In  some  the  vessel  is  arrested  under 
the  first  libel,  and  the  others  come  in  by  petition.  In  some 
districts,  after  a  certain  time  all  the  claims  are  referred  to  a 
commissioner,  to  ascertain  and  report  their  relative  rank. 
In  others,  in  the  event  of  no  contest,  a  decree  is  entered  at 
the  return  day,  or  as  soon  thereafter  as  possible,  giving 
petitioners  a  judgment  against  the  vessel,  and  directing  a 
sale.     It  is  impossible  to  lay  down  any  rule  on  the  subject. 

In  the  Eastern  district  of  Virginia  the  practice  is  that  all 
claims  filed  up  to  the  answer  day  are  paid  according  to 
their  relative  character,  it  matters  not  which  libels  first. 
But  all  claims  after  the  answer  day,  even  though  otherwise 
prior  in  dignity,  come  in  subject  to  those  already  filed.  In 
that  district  the  rule  has  been  inflexible  that  claims  coming 
in  after  a  decree  has  been  entered,  and  an  order  of  sale 
made,  are  subject  to  the  others,  the  reason  being  that  the 
rules  of  that  district  allow  nearly  three  weeks  between  the 
libel  day  and  the  answer  day,  which  therefore  give  ample 
time  for  coming  in,  and  it  being  further  thought  that  bidders 
at  the  sale  ought  to  know  their  relative  rights  in  order  to 
enable  them  to  decide  upon  their  bids.  Those  creditors 
who  stay  out  until  others  more  diligent  than  themselves 
bring  suit,  secure  a  sale,  attend  the  sale,  and  make  the  vessel 
bring  a  good  price,  are  not  permitted  to  intervene  then,  and 
displace  those  who  have  borne  the  heat  and  burden  of  the 
fight. 

In  the  absence  of  special  equities,  the  rule  of  practice  in 
the  Eastern  district  of  Virginia  would  certainly  seem  a  fair 
one,  well  calculated  to  make  vessels  bring  their  full  value, 
and  to  make  marine  claimants  assert  their  claims  season- 
ably, without  allowing  them  to  prejudice  the  rights  of  oth- 
ers.3 

»  See,  also.  The  Saracen,  2  W.  Rob.  Adm.  453. 


§    189)  SUMMARY    OF    PLEADING    AND    PRACTICE.  353 

CHAPTER  XVin. 

A  SUMMARY  OF  PLEADING  AND  PRACTICE!. 

189.  Simplicity  of  Admiralty  Procedure. 

190.  Proceedings  in  Rem  and  in  Personam. 

191.  The  Admiralty  Rules  of  Practice. 

192.  The  Libel. 

193.  Amendments. 

194.  The  Process. 

195.  Decrees  by  Default 

196.  The  Defense. 

197.  The  Trial. 

198.  Evidence. 

199.  Attachments  in  Admiralty. 

200.  Set-Off. 

201.  Limitations. 

202.  Tender. 

203.  Costs. 

204.  Enforcing  Decrees. 

205.  The  Fifty-Ninth  Rule. 

200.  The  Courts  having  Admiralty  Jurisdiction. 

207.  The  Process  of  Appeal. 

208.  Questions  of  Fact  on  Appeal. 

209.  New  Evidence. 

SIMPLICITY    OF     ADMIRALTY  PROCEDURE. 

189.  Admiralty   procedure  is  like   chancery  plead- 
ing in  simplicity  and  flexibility. 

Admiralty  pleading  and  practice  are  extremely  simple; 
more  so  even  than  proceedings  in  chancery,  though  gov- 
erned largely  by  the  liberal  principles  which  prevail  in  that 
forum.1 

By  this  it  is  not  meant  that  an  admiralty  court  has  any 

§  189.     i  Richmond  v.  Copper  Co.,  2  Low.  315,  Fed.  Cas.  No.  11,- 

800. 

HUGHES,  AD.— 23 


354  SUMMARY    OF   PLEADING    AND    PRACTICE.  (Ch.    18 

chancery  jurisdiction.  It  has  no  jurisdiction,  for  instance, 
of  matters  of  account,  except  incidentally,  where  an  account 
is  necessarily  involved  in  exercising  jurisdiction  conferred 
on  some  other  ground.2 

Nor  has  it  jurisdiction  of  controversies  arising  from  titles 
merely  equitable.8 

190.  PROCEEDINGS  IN  REM  AND  IN  PERSONAM. 

Admiralty  proceedings  fall  under  two  great  classes, — pro- 
ceedings in  rem  and  proceedings  in  personam.  In  the 
first,  the  thing  itself  against  which  the  right  is  claimed  or 
liability  asserted  is  proceeded  against  by  name,  irrespective 
of  its  ownership,  arrested  or  taken  into  legal  custody,  and 
finally  sold  to  answer  the  demand,  unless  its  owner  appears 
and  bonds  it. 

A  proceeding  in  personam  is  an  ordinary  suit  in  admiralty 
against  an  individual.  It  may  be  instituted  by  a  monition, 
which  substantially  corresponds  to  an  ordinary  summons  in 
a  common-law  suit,  or  it  may  be  accompanied  in  proper  cases 
by  a  process  of  foreign  attachment,  or  it  may  also  have  a 
warrant  of  arrest  of  the  person  in  cases  where  the  state  law 
permits  an  arrest.1 

Whether  to  proceed  in  rem  or  in  personam  in  a  given 
case  is  rather  a  question  of  substantive  law  than  of  prac- 
tice. It  depends  on  the  question  whether  there  is  an  ad- 
miralty lien,  and  the  discussion  under  the  previous  subjects 
of  these  lectures  must  be  adverted  to  in  order  to  decide. 
Admiralty  Rules  12-20  contain  provisions  when  the  suit 
may  be  in  rem,  when  in  personam,  and  when  in  both.  But 
they  are  not  intended  to  be  exclusive,  or  to  say  that  in 

«  Grant  v.  Poillon,  20  How.  162,  15  L.  Ed.  871;  The  H.  E.  Willard 
(C.  C.)  52  Fed.  387. 

s  THE  ECLIPSE,  135  U.  S.  599,  10  Sup.  Ct.  873,  34  L.  Ed.  269. 
§  190.     1  Admiralty  Rule  48. 


§    190)  PROCEEDINGS    IN    REM    AND   IN    PERSONAM.  355 

cases  not  covered  by  their  terms  there  shall  be  no  remedy, 
whether  in  either  form  or  in  both  combined.* 

*■  Proceedings  in  Rem  Bind  the  World. " 

It  is  a  maxim  of  the  law  that  proceedings  in  rem  bind  the 
world.  In  such  proceedings  no  notice  is  served  on  the 
owner.  It  is  presumed  that  a  seizure  of  his  property  will 
soon  come  to  his  knowledge,  and  cause  him  to  take  steps 
to  defend  it;  and  when  he  appears  for  that  purpose  he 
comes  in  rather  as  claimant  or  intervenor  than  as  defendant. 
Hence,  if  he  does  not  appear,  the  judgment  binds  only  the 
property  seized,  and,  if  it  does  not  satisfy  the  claim,  no  per- 
sonal judgment  can  be  given  against  him  for  the  deficiency. 
In  ordinary  suits  of  foreign  attachment  in  the  state  courts, 
the  debtor  is  defendant  by  name,  and,  if  he  appears,  a  per- 
sonal judgment  may  be  rendered  against  him ;  but  not  so 
in  admiralty  suits  in  rem,  for  the  real  defendant  there  is  the 
vessel  or  other  property,  and  the  owner  appears  not  as 
defendant,  but  as  claimant.8 

Hence,  when  the  maxim  says  that  a  proceeding  in  rem 
binds  the  world,  it  merely  means  that  all  having  any  interest 
in  the  res  have  constructive  notice  of  its  seizure,  and  must 
appear  and  protect  their  interest.  Hence,  as  every  obliga- 
tion implies  a  correlative  right,  no  one  is  bound  to  appear 
whose  interest  is  of  a  character  which  does  not  permit  him 
to  appear ;  and  such  are  not  bound  by  the  proceeding,  ex- 
cept in  so  far  as  they  may  be  bound  through  their  vendors 
or  other  parties  in  privity.4 

»  THE  CORSAIR,  145  U.  S.  335,  12  Sup.  Ct.  949,  36  L.  Ed.  727. 

»  Cooper  v.  Reynolds,  10  Wall.  308,  19  L.  Ed.  931;  O'Brien  v. 
Stephens,  11  Grat.  610;   The  Davis,  10  Wall.  15,  19  L.  Ed.  875. 

4  THE  ECLIPSE,  135  U.  S.  599,  10  Sup.  Ct.  873,  34  L.  Ed.  269; 
Cushlng  v.  Laird,  107  U.  S.  69,  2  Sup.  Ot.  196,  27  L.  Ed.  391. 


356  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.   18 


191.  THE  ADMIRALTY  RULES  OP  PRACTICE. 

In  1842  congress  passed  an  act  directing  the  supreme 
court  to  prepare  and  promulgate  rules  to  govern  the  proce- 
dure and  practice  in  admiralty.  In  pursuance  of  this  stat- 
ute, the  court  promulgated  the  rules  to  regulate  the  ad- 
miralty practice  in  the  inferior  courts  now  known  and  cited 
as  the  "Admiralty  Rules."  They  form  an  admirably  simple 
and  harmonious  system,  and  have  worked  so  well  that  they 
are  to-day  practically  in  the  form  of  the  original  draft,  the 
only  material  change  being  the  addition  of  a  few  to  regulate 
limited  liability  proceedings,  and  one  to  authorize  ^bringing 
in  the  other  vessel  where  only  one  of  two  colliding  vessels 
is  libeled. 

An  admiralty  court  is  not  a  court  of  terms,  but  is  always 
open  for  the  transaction  of  business. 

192.  THE  LIBEL. 

The  first  step  in  an  admiralty  suit  is  to  file  the  libel.  This 
is  the  written  statement  of  the  cause  of  action,  correspond- 
ing to  the  declaration  at  common  law  and  the  bill  in  equity. 
It  must  be  properly  entitled  of  the  court ;  addressed  to  the 
judge  ;  must  state  the  nature  of  the  cause ;  that  the  property 
is  within  the  district,  if  in  rem,  or  the  parties,  their  occupa- 
tion and  residence,  if  in  personam ;  must  then  state  the 
facts  of  the  special  case  in  separate  articles  clearly  and  con- 
cisely, and  conclude  with  a  prayer  for  process  and  a  prayer 
for  general  relief.  It  may  propound  interrogatories  to  the 
adversary.1 

As  a  general  rule,  the  libel  should  be  in  the  name  of  the 
real  party  in  interest,  not  in  the  name  of  one  for  the  benefit 
of  another.  But  the  better  opinion  is  that  it  may  be  amend- 
ed by  inserting  the  names  of  the  real  parties,  or  that,  if  they 

§  192.     1  Admiralty  Rule  23. 


§    192)  THE    LIBEL.  357 

come  in  by  supplemental  libel,  the  proceedings  will  thereby 
be  made  regular.2 

This  principle  does  not  prevent  suits  in  a  representative 
capacity.  For  instance,  the  master  has  wide  powers  as 
agent  of  all  concerned,  and  may  sue  on  behalf  of  owners 
of  ship  and  cargo,  and  frequently  on  behalf  of  the  crew.8 

All  parties  entitled  to  similar  relief  on  the  same  state  of 
facts  may  join  as  libelants,  in  order  to  avoid  multiplicity  of 
suits.  And  for  the  same  reason  distinct  causes  of  action 
may  be  joined  in  one  libel.  The  practice  in  this  respect  is 
very  liberal.4 

In  stating  the  facts  of  the  special  case  useless  verbiage 
and  archaic  terms,  so  frequent  in  common-law  pleading, 
may  safely  be  omitted.  The  narration  may  be  made  as  sim- 
ple as  possible,  provided,  always,  that  those  essentials  com- 
mon to  any  civilized  system  of  pleading  be  observed, — to 
state  the  case  with  sufficient  detail  to  notify  the  adversary  of 
the  grounds  of  attack,  so  that  he  may  concert  his  defense. 
For  instance,  a  libel  in  a  collision  case  must  specify  the  acts 
of  negligence  committed  by  the  other  vessel,  though,  if  it 
does  not  do  so,  but  merely  charges  negligence  in  general, 
and  no  exceptions  are  filed,  it  will  not  prevent  the  case  from 
proceeding.6 

»  The  Ilos,  Swab.  100;  The  Minna,  L.  R.  2  Adm.  &  Ecc.  97;  Fretz 
v.  Bull,  12  How.  466,  13  L.  Ed.  1068;  The  M.  P.  Rich,  Fed.  Cas. 
No.  2,161;  The  Anchoria  (D.  O.)  9  Fed.  840;  The  Beaconsfield,  158 
U.  S.  303,  15  Sup.  Ct.  860,  39  L.  Ed.  993. 

s  The  Commander  in  Chief,  1  Wall.  51,  17  L.  Ed.  609;  The  Black- 
wall,  10  Wall.  1,  19  L.  Ed.  870. 

*  The  Queen  of  the  Pacific  (D.  C.)  61  Fed.  213;  Pacific  Coast 
S.  S.  Co.  v.  Bancroft-Whitney  Co.,  36  O.  O.  A.  135,  94  Fed.  180, 
reversed  180  U.  S.  49,  21  Sup.  Ct.  278,  45  L.  Ed.  — ,  but  not  on  this 
question. 

b  THE  MARPESIA,  L.  R.  4  P.  C.  212;  The  Vim  (D.  C.)  2  Fed. 
874;   The  H.  P.  Baldwin,  2  Abb.  U;  S.  257,  Fed.  Cas.  No.  8,811. 


358  SUMMARY    OF   PLEADING    AND    PRACTICE.  (Cll.    18 


193.  AMENDMENTS. 

In  case  the  libel  is  thought  defective,  great  latitude  is  al- 
lowed in  amendments.  Formal  amendments  are  a  matter 
of  course,  and  amendments  in  matters  of  substance  are  in 
the  discretion  of  the  court.  They  may  be  made  even  on 
appeal,  but  not  to  the  extent  of  introducing  a  new  subject 
of  litigation.1 

But  the  power  of  the  court  to  allow  amendments  is  a 
judicial  discretion,  not  a  mere  caprice.  It  will  not  be  so 
exercised  as,  under  the  guise  of  liberality  to  one  party,  to 
do  injustice  to  the  other.  Hence,  after  the  cause  is  at  issue, 
and  evidence  has  been  taken,  or  the  witnesses  scattered,  a 
court  would  be  chary  in  allowing  amendments,  especially 
of  matters  known  to  the  applicant  for  any  length  of  time 
before  the  application  is  made. 

"The  propriety  of  granting  this  privilege  in  any  particular 
case  will  depend  on  the  circumstances  by  which  it  is  attended. 
The  application  is  addressed  to  the  sound  discretion  of  the 
court,  and  this  discretion  is  to  be  exercised  with  a  just 
regard  to  the  rights  and  interests  of  both  parties ;  care  be- 
ing taken  that  for  the  sake  of  relieving  one  party  injustice 
shall  not  be  done  to  the  other."2 

S  193.     i  Admiralty  Rule  24. 

2  2  Conk.  Adm.  258.  As  examples  of  the  limit  put  upon  this  power 
of  amendments,  see  The  Keystone  (D.  C.)  31  Fed.,  at  page  416; 
The  Thomas  Melville  (D.  C.)  31  Fed.  486;  McKinlay  v.  Morrish,  21 
How.  347,  16  L.  Ed.  100;  Lamb  v.  Parkman,  1  Spr.  343,  Fed.  Cas. 
No.  8,020;  Coffin  v.  Jenkins,  3  Story,  108,  Fed.  Cas.  No.  2,948;  The 
Philadelphian,  9  C.  C.  A.  54,  60  Fed.  423;  O'Brien  v.  Miller,  168 
U.  S.  287,  18  Sup.  Ct  140,  42  L.  Ed.  469;  The  Circassian,  2  Ben. 
171,  Fed.  Cas.  No.  2,723. 


§    194)  THE    PKOCKSS.  359 

194.  THE  PROCESS. 

On  filing  the  libel  in  rem  an  order  for  process  is  filed.  It 
recites,  "On  reading  the  libel,  and  otherwise  complying  with 
the  rules  of  court,  let  process  issue." 

This,  though  supposed  to  be  signed  by  the  judge  specially 
in  each  case,  is  really  a  matter  of  course.  The  clerk  keeps 
a  lot  of  blank  ones  on  hand,  already  signed. 

Thereupon  the  process  of  arrest  issues.  It  is  directed  to 
the  marshal,  and  instructs  him  to  seize  the  vessel,  and  give 
notice  to  all  interested  that  on  a  certain  day,  fixed  by  the 
rules  of  each  district,  the  case  will  come  on  for  hearing, 
when  and  where  they  are  cited  to  appear,  and  interpose 
their  claims,  and  to  return  his  action  thereunder  to  the  court. 

The  time  fixed  for  hearing  and  set  out  in  the  warrant  of 
arrest  varies  with  the  rules  in  different  districts.  It  is  usual- 
ly about  two  weeks  off,  for  the  beauty  of  admiralty  pro- 
ceedings is  their  rapidity. 

In  the  Eastern  district  of  Virginia  the  return  day  is  Tues- 
day of  the  week  next  after  filing  the  libel,  and  the  hearing 
day  is  ten  days  after  that,  which  makes  it  always  fall  on 
Friday. 

The  warrant  of  arrest  is  signed  by  the  clerk,  and  under  the 
court  seal.  The  marshal,  on  receiving  it,  makes  out  three 
notices,  signed  by  himself,  reciting  that  by  virtue  of  the  war- 
rant he  has  seized  the  said  vessel,  and  has  her  in  his  cus- 
tody, and  that  all  persons  are  cited  to  appear  on  the  hear- 
ing day,  and  show  cause  why  a  final  decree  should  not  pass 
as  prayed.  He  takes  the  warrant  of  arrest  and  one  of 
these  proclamations,  and  starts  out  on  a  quest  for  his  prey. 
On  finding  her,  he  reads  the  warrant  of  arrest  to  the  captain 
or  other  person  in  charge,  and  he  pastes  a  copy  of  his  proc- 
lamation on  the  most  conspicuous  part  of  the  vessel.  Then 
he  returns  to  the  court-room  door,  and  pastes  another  there. 
And  then,  by  way  of  making  it  more  widely  known,  he  goes 
to  the  newspaper  designated  by  court  rule,  and  publishes  a 


3G0  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18 

notice  in  substantially  the  same  form.  Meanwhile  a  ship 
keeper  is  in  charge  of  the  ship. 

The  marshal  cannot  serve  process  upon  a  ship  in  custody 
of  an  officer  of  a  state  court.  Such  an  officer  cannot  sell 
the  title  clear  of  maritime  liens,  and  so  the  admiralty  claim- 
ant must  wait  till  the  other  court  lets  go.  As  soon  as  its 
custody  ends,  the  admiralty  claimant  may  proceed  against 
it,  even  in  the  hands  of  the  state-court  purchaser.1 

If  the  vessel  owner  wants  possession  of  his  ship,  he  is  al- 
lowed, by  section  941,  Rev.  St.,  to  come  in,  give  bond  in  dou- 
ble the  amount  of  libelant's  claim,  and  release  her.  This 
bond  is  a  substitute  for  the  vessel,  and  no  suit  is  necessary 
upon  it,  but  judgment  may  be  given  against  the  obligors  on 
it  in  the  final  decree.* 

195.  DECREES  BY  DEFAULT. 

If,  on  the  hearing  day,  no  defense  has  been  interposed, 
then,  under  the  provisions  of  Admiralty  Rule  29,  all  persons 
are  deemed  in  contumacy  and  default,  the  libel  is  taken  for 
confessed,  and  the  court  hears  the  cause  ex  parte.  In  such 
case  no  proof  is  necessary,  except  as  to  damages,  and  the 
only  hearing  is  the  presentation  of  a  decree  to  the  judge.1 

In  other  words,  a  decree  by  default  in  admiralty  resem- 
bles writs  of  inquiry  at  common  law,  or  a  bill  taken  for  con- 
fessed in  equity.2 

§  194.  1  TAYLOR  v.  CARRYL,  20  How.  583,  15  L.  Ed.  1028; 
Moran  v.  Sturges,  154  U.  S.  256,  14  Sup.  Ct.  1,019,  38  L.  Ed.  981; 
The  Resolute,  168  U.  S.  437,  18  Sup.  Ct.  112,  42  L.  Ed.  533. 

*  See  post,  p.  434. 

§  195.  1  Cape  Fear  Towing  &  Transp.  Co.  v.  Pearsall,  33  O.  O. 
A.  161,  90  Fed.  435. 

2  Miller  v.  U.  S.,  11  Wall.  294,  20  L.  Ed.  135;  The  Mollie,  2  Woods, 
318,  Fed.  Cas.  No.  15,795;  The  Water  Witch  (C.  O.)  44  Fed.  95; 
Thompson  v.  Wooster,  114  U.  S.  104,  5  Sup.  Ct.  788,  29  L.  Ed.  105; 
Cape  Fear  Towing  &  Transp.  Co.  v.  Pearsall,  33  C.  C.  A.  161,  90 
Fed.  435. 


§    196)  THE    DEFENSE.  361 

In  case  of  such  default  the  court  may  at  any  time  with- 
in ten  days,  for  cause  shown,  reopen  the  decree,  and  per- 
mit defense.  But  in  default  decrees  this  power  is  limited 
to  ten  days.  On  the  lapse  of  that  time  the  decree  becomes 
just  as  final  as  a  court  judgment  after  the  adjournment  of 
the  term.3 

There  is  some  conflict  of  authority  whether  there  is  such 
a  thing  known  to  the  admiralty  law  as  a  libel  of  review. 
The  better  opinion  seems  to  be  that  there  is ;  but  it  is  a 
power  reluctantly  exercised,  and  lies  only  for  errors  ap- 
parent on  the  face  of  the  record,  or  for  fraud.  It  does  not 
lie  to  enable  a  party  to  set  up  facts  or  defenses  which  his 
own  carelessness  overlooked.4 

196.  THE    DEFENSE. 

If  the  defendant  does  not  wish  to  let  his  case  go  by  de- 
fault, he  raises  any  legal  points  apparent  on  the  libel  by 
exception,  which  corresponds  to  a  demurrer,1  and  he  sets 
up  defenses  of  fact  by  answer.  This  must  be  on  oath  or 
affirmation,  and  must  be  full  and  explicit  to  each  article  of 
the  libel,  and  it  may  propound  interrogatories  to  the  li- 
belant.2 

If  it  is  not  sufficiently  full,  the  libelant  may  except. 

An  answer  in  admiralty  has  only  the  effect  of  a  denial. 
Unlike  an  answer  in  chancery,  it  is  not  evidence  in  favor  of 
respondent." 

•  Admiralty  Rule  40:  SNOW  v.  EDWARDS.  2  Low.  273,  Fed. 
Oas.  No.  13,145;  The  Illinois,  5  Blatchf.  256,  Fed.  Cas.  No.  7,002; 
Northrop  v.  Gregory,  2  Abb.  U.  S.  503,  Fed.  Cas.  No.  10,327. 

4  THE  NEW  ENGLAND,  3  Sumn.  495.  Fed.  Cas.  No.  10,151: 
Northwestern  Oar  Co.  v.  Hopkins,  4  Biss.  51,  Fed.  Cas.  No.  10,334; 
Dexter  v.  Arnold,  3  Mason,  284,  Fed.  Cas.  No.  3,855. 

i  196.     *  The  Cynthia,  Fed.  Cas.  No.  17,546a. 

»  Admiralty  Rule  27. 

«  Cushman  v.  Ryan,  1  Story,  91,  Fed.  Cas.  No.  3,516;  Ends  v. 
The  II.  D.  Bacon,  Newb.  Adin.  274,  Fed.  Cas.  No.   1,232. 


362  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18 

Things  neither  admitted  nor  denied  by  the  answer  are  not 
taken  as  true,  but  must  be  proved.4 

The  defendant,  in  his  answer,  may  set  up  want  of  juris- 
diction of  the  subject-matter  and  a  defense  on  the  merits.5 

Of  course,  he  cannot  plead  mere  want  of  jurisdiction  over 
the  person,  and  defend  on  the  merits,  as  that  would  be  a 
general  appearance  in  any  system  of  pleading.6 

The  answer,  if  sufficient,  or  if  not  excepted  to,  puts  the 
case  at  issue.     No  replication  is  necessary.1 


197.  THE  TRIAL. 

As  admiralty  is  not  a  court  of  terms,  the  case  goes  at 
once  on  the  trial  calendar,  and  may  be  called  up  at  any  time 
convenient  to  the  litigants. 

It  is  tried  before  the  judge  (there  are  no  juries  in  ad- 
miralty proceedings  proper),  who  hears  the  witnesses  ore 
tenus,  or,  if  he  sees  fit,  appoints  a  commissioner  to  take  the 
evidence  down  in  writing,  and  report  it  to  him  later.  In 
this  matter  the  practice  varies  in  the  different  districts.  In 
the  Eastern  district  of  Virginia  the  rule  requires  that  in 
cases  involving  over  $500  the  evidence  shall  be  ore  tenus, 
and  taken  down  in  shorthand ;  and  the  stenographer's  notes, 
when  written  out,  constitute  the  record  in  the  event  of  an 
appeal. 

On  account  of  the  shifting  character  of  marine  witnesses, 
the  cases  are  rare  where  all  the  evidence  can  be  offered  in 
court.  In  order  to  save  the  testimony  of  departing  wit- 
nesses, or  secure  the  testimony  of  nonresidents,  it  is  usually 
necessary  to  take  many  depositions  de  bene  esse.  They  are 
taken  on  notice,  pursuant  to  the  provisions  of  section  863, 

«  The  Dodge  Healy,  4  Wash.  C.  C.  651,  Fed.  Oas.  No.  2.S49. 

e  The  Lindrup  (D.  C.)  62  Fed.  851. 

e  Jones  v.  Andrews,  10  Wall.  329,  19  L.  Ed.  935. 

1  Admiralty  llule  51. 


§    19S)  EVIDENCE.  363 

Rev.  St.,  or  the  recent  act  permitting  them  to  be  taken  as  in 
the  state  courts.1 

In  practice,  counsel  are  usually  liberal  with  each  other  in 
such  matters,  accepting  short  notice,  allowing  the  evidence 
to  be  taken  in  shorthand,  waiving  the  witnesses'  signatures, 
and  even  the  filing  of  the  deposition  till  the  hearing. 

When  the  case  comes  on,  it  is  heard  and  argued  substan- 
tially as  a  chancery  cause  would  be. 

If  the  damages  are  not  known  or  agreed  to,  the  judge,  in 
the  event  of  a  decision  for  libelant,  usually  refers  the  matter 
to  a  commissioner  by  an  interlocutory  decree  to  inquire  into 
and  assess  the  damages.  Under  Admiralty  Rule  44  this  com- 
missioner has  about  the  powers  of  a  master  in  chancery. 
Those  dissatisfied  with  his  report  may  except  to  it,  and  upon 
it  and  such  exceptions  the  court  renders  its  final  decree. 

198.  EVIDENCE. 

The  rules  of  evidence  are  substantially  the  same  in  the  ad- 
miralty court  that  they  are  in  the  state  courts.  Section  858 
of  the  United  States  Revised  Statutes  provides  that  no  wit- 
ness shall  be  excluded  for  color  or  interest,  except  that  in  ac- 
tions by  or  against  executors,  administrators,  or  guardians 
neither  party  can  testify  as  to  transactions  with  the  testator, 
intestate,  or  ward,  unless  called  by  the  opposite  party,  or  re- 
quired to  do  so  by  the  court ;  and  that  in  all  other  respects 
the  laws  of  the  state  shall  be  the  rules  of  decision.  Under 
this  statute,  husband  and  wife  can  testify  for  each  other  if 
the  laws  of  the  state  permit  it ;  otherwise  not.x 

I  197.     1  27  Stat.  7;   post,  p.  441. 

I  198.  1  Packet  Co.  v.  Clough,  20  Wall.  528,  22  L.  Ed.  406;  Lu- 
cas v.  Brooks,  18  Wall.  436,  21  L.  Ed.  779-  For  the  statutes  regu- 
lating evidence,  see  post,  pp.  435-441. 


Oiji.  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18 


199.  ATTACHMENTS  IN  ADMIRALTY. 

It  has  been  settled  that  the  common-law  and  chancery 
courts  of  the  United  States  have  no  jurisdiction  of  suits  by 
foreign  attachment  against  nonresidents,  for  the  reason  that 
by  the  federal  statutes  no  man  can  be  sued  except  in  the 
district  where  he  lives.1 

Since  the  last-cited  decision,  however,  the  Tucker-Culbert- 
son  act  allows  suits  to  be  brought  in  the  district  of  the 
plaintiff's  residence,  so  that  a  process  of  foreign  attachment 
could  be  sustained  in  such  district  if  the  defendant  can  be 
served  with  process. 

In  admiralty,  however,  a  libel  accompanied  by  an  attach- 
ment can  be  sustained,  as  these  statutes  do  not  apply  to  the 
admiralty  courts.2 

There  are  some  matters  in  which  admiralty  has  its  peculiar 
rules,  to  which  attention  should  be  called. 

200.  SET-OFF. 

Set-off  cannot  be  pleaded  in  admiralty  for  the  reason  that 
it  is  the  creature  of  statutes  which  were  passed  for  the  com- 
mon-law and  chancery  courts,  and  were  not  intended  to  ap- 
ply to  the  admiralty  courts.1 

This,  however,  does  not  prevent  a  counterclaim  arising 
out  of  the  same  transaction  from  being  used  to  recoup  the 
damages. 

§  199.  i  Ex  parte  Des  Moines  &  M.  R.  Co.,  103  U.  S.  794,  26  L. 
Ed.  461. 

2  IN  RE  LOUISVILLE  UNDERWRITERS,  134  U.  S.  488,  10  Sup. 
Ct.  587,  33  L.  Ed.  991. 

§  200.  i  Willard  v.  Dorr,  3  Mason,  91,  Fed.  Cas.  No.  17,679; 
O'Brien  v.  1,614  Bags  of  Guano  (D.  C.)  48  Fed.  726. 


§  203)  costs.  S65 

201.  LIMITATIONS. 

Admiralty  is  not  bound  by  the  statutes  of  limitation,  for 
this  same  reason  that  they  do  not  in  terms  apply  to  those 
courts.  Hence,  where  the  rights  of  third  parties  have  in- 
tervened, an  admiralty  court  will  hold  a  claim  stale  in  a  much 
shorter  period  than  that  prescribed  by  the  statutes,  and  we 
have  seen  in  other  connections  that  among  admiralty  liens  of 
the  same  character  the  last  is  preferred  to  the  first.* 

But,  as  between  the  original  parties,  unless  special  circum- 
stances have  intervened,  the  admiralty  courts  adopt  the  stat- 
utes of  limitation  by  analogy,  the  doctrine  being  practically 
the  same  as  the  chancery  doctrine  on  the  same  subject.1 

202.  TENDER. 

In  the  matter  of  tender,  admiralty  is  not  as  rigid  as  the 
other  courts.  A  formal  offer  in  actual  cash  is  not  de  rig- 
ueur.  Any  offer  to  pay,  followed  up  by  a  deposit  of  the 
amount  admitted  in  the  registry  of  the  court,  is  sufficient. 

203.  COSTS. 

In  the  matter  of  costs  admiralty  courts  exercise  a  wide 
discretion,  and  often  withhold  them  as  a  punishment  in  case 
the  successful  litigant  has  been  guilty  of  oppression,  or  has 
put  his  opponent,  by  exorbitant  demands,  to  unnecessary 
inconvenience  or  expense.1 

The  act  of  July  20,  1892,2  permits  suits  in  forma  pauperis 
without  requiring  security  for  costs.     The  act,  if  intended  to 

•  Ante,  pp.  94,  103,  345. 

§  201.  1  THE  SARAH  ANN.  2  Sumn.  20G,  Fed.  Cas.  No.  12,842: 
The  Queen  (D.  0.)  78  Fed.  165;  The  Key  City,  14  Wall.  653,  20  L. 
Ed.  896. 

§  203.     1  Shaw  v.  Thompson,  Olcott,  Ml,  Fed.  Cas.  No.  12,726. 

2  27  Stat.  252;    post,  p.  441. 


366  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18 

apply  to  the  admiralty  courts,  frequently  works  great  in- 
justice by  tying  up  large  steamers  in  foreign  ports  till  they 
give  bond ;  and  they  are  remediless  if  the  cause  of  action  is 
unfounded. 

204.  ENFORCING  DECREES. 

If,  after  the  trial  and  all  its  incidents  are  over,  the  decision 
is  in  favor  of  libelant,  and  there  is  no  appeal,  the  final  de- 
cree, in  case  the  vessel  has  been  bonded,  goes  against  the 
signers  of  the  bond,  and  under  Admiralty  Rule  21  can  be 
enforced  by  a  writ  of  fieri  facias. 

In  case  the  vessel  has  not  been  bonded,  the  final  decree 
provides  that  she  be  advertised  and  sold  by  the  marshal  of 
the  district,  who  alone,  under  Admiralty  Rule  41,  can  per- 
form this  duty.  The  practice  is  to  make  the  sale  for  cash, 
and  the  rule  requires  it  to  be  deposited  in  the  registry  of 
the  court,  to  await  its  further  orders. 

Admiralty  Rule  42  requires  money  in  the  registry  of  the 
court  to  be  drawn  out  by  checks  signed  by  the  judge. 

Under  Rule  43,  parties  having  any  interest  in  the  vessel 
may  come  in  by  petition,  and  assert  it.  Under  this,  a  party 
holding  any  sort  of  lien  may  come  in,  but  not  any  party 
having  a  mere  personal  claim  upon  the  owner.1 

205.  THE   FIFTY-NINTH  RULE. 

A  recent  rule1  permits  the  owner  of  one  of  two  vessels 
which  has  been  libeled  in  a  collision  case  by  a  third  party  to 
bring  in  the  other  vessel  if  he  can  find  her,  and  have  the 
damages  assessed  against  either  or  both,  according  to  the 
fact.2 

§  204.  1  The  Edith,  94  U.  S.  518,  24  L.  Ed.  167;  Leland  v.  Me- 
dora,  2  Woodb.  &  M.  92,  Fed.  Cas.  No.  8,237;  Brackett  v.  Hercules, 
Gilp.  184,  Fed.  Cas.  No.  1,762. 

§  205.     1  Admiralty  Rule  59. 

2  Ante,  p.  280;  The  Hudson,  Fed.  Cas.  No.  6,828;  Joice  v.  Canal 
Boats  (D.  C.)  32  Fed.  553;  The  Greenville  (D.  C.)  58  Fed.  805. 


§    206)       THE    COURTS    HAVING    ADMIRALTY   JURISDICTION.         367 

206.  THE    COURTS     HAVING     ADMIRALTY    JURIS- 
DICTION. 

The  federal  constitution  vests  the  judicial  power  in  one 
supreme  court  and  such  inferior  courts  as  congress  shall 
from  time  to  time  establish.  Acting  under  this  authority, 
congress,  by  the  famous  judiciary  act  of  1789,  divided  the 
United  States  into  districts,  and  established  in  each  district 
two  courts  of  original  jurisdiction,  the  district  court  and  the 
circuit  court.  To  the  district  court  all  classes  of  peculiar 
or  special  character  were  assigned,  such  as  suits  for  penal- 
ties, admiralty,  and  bankruptcy  cases,  and  minor  criminal 
cases.  On  the  circuit  court  was  conferred  the  general  cur- 
rent litigation  usual  between  man  and  man,  including  all 
cases  of  common  law  and  equity,  and  more  important  crim- 
inal cases.  The  circuit  court  was  also  given  appellate  juris- 
diction of  most  of  the  subjects  of  district  court  cognizance, 
including  admiralty  cases. 

There  was  a  district  judge  appointed  for  each  district,  who 
was  empowered  to  hold  both  the  district  and  circuit  courts 
for  that  district,  except  that  he  could  not  sit  in  the  circuit 
court  on  appeals  from  his  own  decisions.  To  provide  an 
appellate  judge  for  such  cases,  the  districts  were  grouped 
into  larger  units,  called  "circuits,"  equal  in  number  to  the 
justices  of  the  supreme  court,  and  each  justice,  during  the 
recess  of  that  court,  went  around  his  circuit,  holding  the 
circuit  court  in  each  district.  It  is  unfortunate  that  these 
larger  units  were  called  "circuits,"  for  it  has  tended  to  create 
confusion  by  making  many  suppose  that  there  is  a  circuit 
court  for  the  entire  circuit,  which  is  not  the  fact.  The  cir- 
cuit courts  of  the  different  districts  are  as  distinct  from  each 
other  as  the  state  circuit  court  for  Rockbridge  and  the  state 
circuit  court  for  Augusta ;  the  only  thing  in  common  being 
that  both  may  be  held  by  the  same  judge.  The  number  of 
this  circuit  is  the  Fourth.  There  are  circuit  judges  for  the 
Fourth  circuit,  but  there  is  no  such  thing  as  a  circuit  court 


368  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18 

for  the  Fourth  circuit,  though  there  is  a  circuit  court  for 
the  Eastern  district  of  Virginia. 

Thus  appeals  from  the  district  courts  in  admiralty  were 
tried  in  the  circuit  court  by  the  supreme  court  justice  for 
that  circuit.  The  appeal  took  up  questions  both  of  law  and 
fact  for  review,  the  notes  of  evidence  taken  by  the  district 
judge  being  the  evidence  on  appeal;  but  the  trial  was  de 
novo,  being  rather  a  new  trial  than  an  appeal,  and  new  evi- 
dence could  be  introduced  in  the  appellate  court.  In  the 
event  of  an  adverse  decision  in  the  circuit  court,  there  was 
a  second  appeal,  both  on  law  and  fact,  to  the  supreme  court, 
in  cases  involving  over  $2,000. 

The  increase  of  litigation  consequent  on  the  Civil  War 
was  so  great  that  it  was  found  necessary  to  increase  the  ju- 
dicial force,  and  lighten  the  labors  of  the  supreme  court  jus- 
tices. Hence,  in  1869,  congress  enacted  that  there  should 
be  an  additional  judge  appointed  for  each  judicial  circuit,  to 
be  called  a  "circuit  judge."  He  could  hold  the  circuit  court 
in  any  district  of  his  circuit. 

The  docket  of  the  supreme  court  became  more  and  more 
congested,  and  further  relief  became  imperative.  And  so, 
by  the  act  of  February  16,  1875,  congress  raised  the  limit 
of  appeals  to  the  supreme  court  to  $5,000,  and  further  pro- 
vided that  in  admiralty  there  should  no  longer  be  an  appeal 
to  that  court  on  questions  both  of  law  and  fact,  but  that 
the  circuit  judge  on  an  admiralty  appeal  from  the  district 
court  should  make  a  finding  of  the  facts,  and  draw  his  con- 
clusions of  law  therefrom ;  and  the  case  then  went  to  the 
supreme  court  simply  on  this  finding,  and  no  longer  on  all 
questions,  both  of  law  and  fact.  This,  however,  still  left  the 
litigant  one  appeal  on  questions  of  fact, — that  from  the  dis- 
trict court  to  the  circuit  court. 

This  continued  to  be  the  law  until  the  act  of  March  3, 
1891,  known  as  the  "Appellate  Courts  Act."  It  created  an 
additional  circuit  judge  for  each  circuit,  abolished  the  appel- 
late jurisdiction  of  the  circuit  court,  and  established  a  new 


§  207)  THE  PROCESS  OF  APPEAL.  369 

appellate  court  in  each  circuit,  composed  of  the  circuit  jus- 
tice and  the  two  circuit  judges,  but  with  the  district  judges 
used  to  fill  vacancies.  Under  this  law  admiralty  appeals 
from  the  district  court  go  to  this  appellate  court,  with  no 
restriction  as  to  the  amount  involved,  and  on  the  full  record 
of  the  district  court,  thereby  nominally  giving  a  review  of 
questions  both  of  law  and  fact.  This  new  appellate  court  is 
the  court  of  last  resort  in  admiralty  cases,  except  that  it  may 
certify  to  the  supreme  court  for  decision  any  questions  as  to 
which  it  may  desire  instruction,  and  except,  also,  that  the 
supreme  court  may,  by  certiorari,  bring  up  for  review  any 
cases  that  it  may  deem  of  sufficient  importance. 

207.  THE  PROCESS  OF  APPEAL. 

The  process  of  appeal  is  very  simple.  As  soon  as  the 
final  decree  is  entered  in  the  district  court,  a  petition  is  filed 
in  that  court,  addressed  to  the  judges  of  the  circuit  court 
of  appeals,  praying  an  appeal,  and  assigning  errors.  On 
this  the  district  judge  (or  any  judge  of  the  appellate  court) 
indorses :     "Appeal  allowed.     Bond  required  in  the  penalty 

of  $ ,  conditioned  according  to  law,"  and  signs  it.     He 

also  signs  the  citation,  which  is  the  notice  of  appeal  given  to 
the  other  side,  and  cites  him  to  appear  in  the  annellate  court 
at  a  day  named  to  defend  his  decree.  A  certified  copy  of  the 
entire  transcript  is  then  obtained  from  the  district  clerk,  and 
filed  with  the  clerk  of  the  appellate  court,  who  dockets  the 
case,  and,  when  secured  as  to  costs,  has  the  record  printed. 

The  act  of  March  3,  1891,  provides  that  the  appeal  must  be 
taken  within  six  months  from  the  decree  complained  of, 
"unless  a  lesser  time  is  now  allowed  by  law."  As  admiralty 
appeals,  before  the  act,  had  to  be  taken  to  the  next  term  of 
the  then  appellate  court,  no  matter  how  close  that  was,  it 
would  seem  to  be  clear  now  that  appeals  from  the  district 
court  should  be  taken  to  the  next  term.  This  is  the  view 
that  has  been  taken  by  the  bar  in  the  Eastern  district  of 

HUGHES.AD.— 24 


370  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18" 

Virginia,  and  it  is  the  practice  there  to  hold  back  the  decree 
in  cases  decided  so  close  to  the  term  as  to  prevent  maturing 
an  appeal.  But  in  other  circuits  it  has  been  held  that  ap- 
peals in  admiralty  cases  are  governed  by  the  six-months 
limitation,  and  are  unaffected  by  the  clause  above  quoted.1 

208.  QUESTIONS  OF  FACT  ON  APPEAL. 

Although  the  intent  of  congress  to  give  an  appeal  on  ques- 
tions both  of  law  and  fact  is  clear,  and  it  is  notorious  that 
the  act  of  February  16,  1875,  while  it  was  in  force,  was  far 
from  satisfactory,  this  has  been  largely  frittered  away  by 
judicial  decisions.  The  appellate  courts  have  gone  very  far 
in  practically  refusing  to  review  questions  of  fact  where  the 
district  judge  has  had  the  witnesses  before  him,  though  not 
so  far  where  part  or  all  of  the  evidence  has  been  by  dep- 
osition. This  doctrine  is  largely  an  abdication  of  the  trust 
confided  in  them,  and,  for  an  admiralty  court,  smacks  too 
much  of  the  old  common-law  fiction  as  to  the  sacredness 
of  the  jury's  verdict.  Under  the  old  law  giving  a  review  on 
questions  of  law  and  fact  the  supreme  court  has  more  than 
once  spoken  of  a  right  of  appeal  as  something  more  than  a 
shadow.1 

209.  NEW  EVIDENCE. 

A  curious  feature  of  admiralty  appeals  formerly  was  that 
an  admiralty  appeal  was  a  new  trial.  An  appeal  from  the 
district  to  the  circuit  court  was  like  one  from  a  magistrate 
in  the  state  procedure, — new  witnesses  could  be  examined, 
and  the  circuit  court  entered  its  own  decree,  and  issued  its 

S  207.     1  The  New  York,  44  C.  O.  A.  38,  104  Fed.  561. 

§  208.  iPost  v.  Jones,  19  How.  150,  15  L.  Ed.  618;  THE  ARI- 
ADNE, 13  Wall.  475,  20  L.  Ed.  542;  The  City  of  Hartford,  97  U.  S. 
823,  24  L.  Ed.  930;  The  Gypsum  Prince,  14  O.  C.  A.  573,  67  Fed. 
612;  The  Glendale,  26  C.  0.  A.  500,  81  Fed.  633;  The  Albany,  27  C. 
C.  A.  28,  81  Fed.  966;  The  Captain  Weber,  32  C.  C.  A.  452,  89  Fed. 
957. 


§    209)  NEW    EVIDENCE.  371 

own  execution,  instead  or  remanding  the  case  to  the  dis- 
trict court  for  future  proceedings. 

Even  an  appeal  from  the  circuit  to  the  supreme  court  was 
so  far  a  new  trial  that  additional  witnesses  could  be  exam- 
ined, but  the  supreme  court  restricted  this  right  bv  rule  to 
evidence  which  could  not  have  been  produced  in  the  lower 
courts,  and  required  it  to  be  taken  by  deposition.  In  other 
words,  they  discouraged  the  practice  as  much  as  possible 
on  account  of  its  obvious  injustice  and  liability  to  abuse.1 

The  new  appellate  courts  have  adopted  substantially  the 
same  doctrine.  In  case  an  appeal  is  taken  up  with  a  record 
not  containing  the  evidence,  they  will  not  review  the  facts 
at  all.2 

In  the  case  of  The  Glide,8  a  case  was  tried  in  the  district 
court  of  Maryland,  the  witnesses  being  examined  ore  tenus, 
but  there  was  no  rule  in  that  district  requiring  their  testi- 
mony to  be  taken  down,  and  it  was  not  taken  down.  The 
unsuccessful  party  appealed,  and  asked  for  a  commission  to 
retake  his  testimony  for  use  on  appeal.  The  court  permit- 
ted it,  on  the  ground  that  it  was  not  his  fault  if  the  district 
court  rule  did  not  provide  for  such  a  case.  The  court,  after 
arguing  out  his  right  to  retake  his  testimony,  ended  its  opin- 
ion by  saying  that  the  case  must  not  be  taken  as  a  precedent, 
and  any  party  who  omitted  or  neglected  to  have  his  testi- 
mony taken  down  must  suffer  the  consequences.  So  it 
sounds  very  much  like  a  verdict  of  "Not  guilty,  but  don't 
do  it  again." 

The  fact  that  there  was  no  rule  requiring  it  was  not  much 
of  an  excuse.  In  the  common-law  courts  there  is  no  rule 
or  statute  requiring  evidence  to  be  preserved  for  the  pur- 
pose of  preparing  bills  of  exceptions,  but  the  lawyer  who 
gave  that  as  an  excuse  for  not  setting  out  the  evidence  in 
his  bill  would  receive  scant  consideration  from  a  judge. 

|  209.     i  The  Mabey,  10  Wall.  419,  19  L.  Ed.  963. 
»  The  Philadelphia!!,  9  C.  O.  A.  54,  60  Fed.  423. 
«  18  0.  C.  A.  504,  72  Fed.  200. 


372  SUMMARY    OF    PLEADING    AND    PRACTICE.  (Ch.    18 

The  well-known  characteristics  of  sailor  witnesses,  and 
the  utter  lack  of  any  check  on  them  in  case  their  testimony 
is  not  in  black  and  white,  especially  after  they  have  found 
out  by  hearing  the  arguments  in  the  first  trial  how  their 
case  should  be  strengthened,  render  the  procedure  permit- 
ted in  this  case  one  of  the  gravest  danger.* 

Under  the  present  law  the  appellate  court  remands  the 
case  to  the  district  court  for  final  action,  instead  of  entering 
its  own  decree,  as  the  old  circuit  court  did. 

«  Taylor  v.  Harwood,  Taney,  437,  Fed.  Cas.  No.  13,794. 


APPENDIX. 


L    The  Mariner's  Compass. 

2.     Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast 

Waters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(6)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels. 
8.     The  Limited  Liability  Acts.  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  26,  1884. 

4.  Section    941,    Rev.    St.,    as    Amended,    Regulating    Bonding    of 

Vessels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 

1.  THE  MARINER'S  COMPASS. 


HUGHES, AD. 


(373) 


374  STATUTES    REGULATING    NAVIGATION.  (Appdx. 


2.  THE  RULES  OF  NAVIGATION. 

In  addition  to  the  statute  books,  these  are  accessible  in 
various  publications  of  the  bureau  of  navigation.  These  cir- 
culars, however,  have  added  captions,  not  contained  in  the 
original  acts,  and  have  even  changed  the  original  captions 
in  some  places.  Both  have  been  retained  in  the  acts  printed 
below,  as  they  greatly  facilitate  reference ;  but  those  cap- 
tions which  are  not  a  part  of  the  act  are  placed  in  brackets, 
so  as  to  distinguish  them  from  those  that  are. 

Besides  the  statute  rules,  the  board  of  supervising  inspect- 
ors has  authority  to  make  regulations  supplementary  there- 
to ;  and  there  are  elaborate  rules  made  by  virtue  of  this 
authority,  both  for  the  Coast  Waters,  the  Lakes  and  the 
Mississippi  Valley.  These  are  omitted  for  want  of  space, 
and  because  they  are  constantly  being  changed. 

(i)  INTERNATIONAL  RULES.    (29  STAT.  885.) 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
that  the  following  regulations  for  preventing  collisions  at 
sea  shall  be  followed  by  all  public  and  private  vessels  of  the 
United  States  upon  the  high  seas  and  in  all  waters  connected 
therewith,  navigable  by  seagoing  vessels. 

PRELIMINARY. 

In  the  following  rules  every  steam-vessel  which  is  under 
sail  and  not  under  steam  is  to  be  considered  a  sailing-vessel, 
and  every  vessel  under  steam,  whether  under  sail  or  not,  is 
to  be  considered  a  steam-vessel. 

The  word  "steam-vessel"  shall  include  any  vessel  pro- 
pelled by  machinery. 

A  vessel  is  "under  way"  within  the  meaning  of  these  rules 
when  she  is  not  at  anchor,  or  made  fast  to  the  shore,  or 
aground. 


Appdx.)  IXTERNATlbNAL    KULES.  375 

RULES  CONCERNING  LIGHTS  AND  SO  FORTH. 

The  word  "visible"  in  these  rules  when  applied  to  lights 
shall  mean  visible  on  a  dark  night  with  a  clear  atmosphere. 

Article  I.  The  rules  concerning  lights  shall  be  complied 
with  in  all  weathers  from  sunset  to  sunrise,  and  during  such 
time  no  other  lights  which  may  be  mistaken  for  the  pre- 
scribed lights  shall  be  exhibited. 

I  Steam   vessels — Masthead   light.] 

Art.  2.  A  steam-vessel  when  under  way  shall  carry — (a) 
On  or  in  front  of  the  foremast,  or  if  a  vessel  without  a  fore- 
mast, then  in  the  fore  part  of  the  vessel,  at  a  height  above 
the  hull  of  not  less  than  twenty  feet,  and  if  the  breadth  of  the 
vessel  exceeds  twenty  feet,  then  at  a  height  above  the  hull 
not  less  than  such  breadth,  so,  however,  that  the  light  need 
not  be  carried  at  a  greater  height  above  the  hull  than  forty 
feet,  a  bright  white  light,  so  constructed  as  to  show  an  un- 
broken light  over  an  arc  of  the  horizon  of  twenty  points  of 
the  compass,  so  fixed  as  to  throw  the  light  ten  points  on 
each  side  of  the  vessel,  namely,  from  right  ahead  to  two 
points  abaft  the  beam  on  either  side,  and  of  such  a  character 
as  to  be  visible  at  a  distance  of  at  least  five  miles. 

[Steam  vessels — Side  lights.] 

(b)  On  the  starboard  side  a  green  light  so  constructed  as 
to  show  an  unbroken  light  over  an  arc  of  the  horizon  of  ten 
points  of  the  compass,  so  fixed  as  to  throw  the  light  from 
right  ahead  to  two  points  abaft  the  beam  on  the  starboard 
side,  and  of  such  a  character  as  to  be  visible  at  a  distance  of 
at  least  two  miles. 

(c)  On  the  port  side  a  red  light  so  constructed  as  to  show 
an  unbroken  light  over  an  arc  of  the  horizon  of  ten  points 
of  the  compass,  so  fixed  as  to  throw  the  light  from  right 
ahead  to  two  points  abaft  the  beam  on  the  port  side,  and  of 
such  a  character  as  to  be  visible  at  a  distance  of  at  least 
two  miles. 


376  STATUTES    REGULATING    NAVIGATION.  (Appdx.  ^ 

(d)  The  said  green  and  red  side-lights  shall  be  fitted  with 
inboard  screens  projecting  at  least  three  feet  forward  from 
the  light,  so  as  to  prevent  these  lights  from  being  seen 
across  the  bow. 

[Steam  vessels— Range  lights.] 

(e)  A  steam-vessel  when  under  way  may  carry  an  addi- 
tional white  light  similar  in  construction  to  the  light  men- 
tioned in  subdivision  (a).  These  two  lights  shall  be  so 
placed  in  line  with  the  keel  that  one  shall  be  at  least  fifteen 
feet  higher  than  the  other,  and  in  such  a  position  with  refer- 
ence to  each  other  that  the  lower  light  shall  be  forward  of 
the  upper  one.  The  vertical  distance  between  these  lights 
shall  be  less  than  the  horizontal  distance. 

[Steam- vessels  when  towing.] 

Art.  3.  A  steam-vessel  when  towing  another  vessel  shall, 
in  addition  to  her  side-lights,  carry  two  bright  white  lights 
in  a  vertical  line  one  over  the  other,  not  less  than  six  feet 
apart,  and  when  towing  more  than  one  vessel  shall  carry 
an  additional  bright  white  light  six  feet  above  or  below  such 
light,  if  the  length  of  the  tow  measuring  from  the  stern  of 
the  towing  vessel  to  the  stern  of  the  last  vessel  towed  ex- 
ceeds six  hundred  feet.  Each  of  these  lights  shall  be  of  the 
same  construction  and  character,  and  shall  be  carried  in  the 
same  position  as  the  white  light  mentioned  in  article  two 
(a),  excepting  the  additional  light,  which  may  be  carried  at 
a  height  of  not  less  than  fourteen  feet  above  the  hull. 

Such  steam-vessel  may  carry  a  small  white  light  abaft  the 
funnel  or  aftermast  for  the  vessel  towed  to  steer  by,  but  such 
light  shall  not  be  visible  forward  of  the  beam. 

[Special  lights.] 

Art.  4.  (a)  A  vessel  which  from  any  accident  is  not  under 
command  shall  carry  at  the  same  height  as  a  white  light 
mentioned  in  article  two  (a),  where  they  can  best  be  seen, 
and  if  a  steam-vessel  in  lieu  of  that  light,  two  red  lights,  in 


Appdx.)  INTERNATIONAL    RULES.  377 

a  vertical  line  one  over  the  other,  not  less  than  six  feet  apart, 
and  of  such  a  character  as  to  be  visible  all  around  the  hori- 
zon at  a  distance  of  at  least  two  miles;  and  shall  by  day 
carry  in  a  vertical  line  one  over  the  other,  not  less  than  six 
feet  apart,  where  they  can  best  be  seen,  two  black  balls  or 
shapes,  each  two  feet  in  diameter. 

(b)  A  vessel  employed  in  laying  or  in  picking  up  a  tele- 
graph cable  shall  carry  in  the  same  position  as  the  white 
light  mentioned  in  article  two  (a),  and  if  a  steam-vessel 
in  lieu  of  that  light,  three  lights  in  a  vertical  line  one  over 
the  other  not  less  than  six  feet  apart.  The  highest  and  low- 
est of  these  lights  shall  be  red,  and  the  middle  light  shall 
be  white,  and  they  shall  be  of  such  a  character  as  to  be 
visible  all  around  the  horizon,  at  a  distance  of  at  least  two 
miles.  By  day  she  shall  carry  in  a  vertical  line,  one  over  the 
other,  not  less  than  six  feet  apart,  where  they  can  best  be 
seen,  three  shapes  not  less  than  two  feet  in  diameter,  of 
which  the  highest  and  lowest  shall  be  globular  in  shape  and 
red  in  color,  and  the  middle  one  diamond  in  shape  and  white. 

(c)  The  vessels  referred  to  in  this  article,  when  not  mak- 
ing way  through  the  water,  shall  not  carry  the  side-lights, 
but  when  making  way  shall  carry  them. 

(d)  The  lights  and  shapes  required  to  be  shown  by  this 
article  are  to  be  taken  by  other  vessels  as  signals  that  the 
vessel  showing  them  is  not  under  command  and  can  not 
therefore  get  out  of  the  way. 

These  signals  are  not  signals  of  vessels  in  distress  and  re- 
quiring assistance.  Such  signals  are  contained  in  article 
thirty-one. 

[Lights  for  Bailing  vessels  and  vessels  in  tow.] 

Art.  5.  A  sailing-vessel  under  way  and  any  vessel  being 
towed  shall  carry  the  same  lights  as  are  prescribed  by  article 
two  for  a  steam-vessel  under  way,  with  the  exception  of  the 
white  lights  mentioned  therein,  which  they  shall  never  carry. 


378  8TATUTES    REGULATING    NAVIGATION.  (Appdx. 

[Lights  for  small  vessel*.] 

Art.  6.  Whenever,  as  in  the  case  of  small  vessels  under 
way  during  bad  weather,  the  green  and  red  side-lights  can 
not  be  fixed,  these  lights  shall  be  kept  at  hand,  lighted  and 
ready  for  use ;  and  shall,  on  the  approach  of  or  to  other  ves- 
sels, be  exhibited  on  their  respective  sides  in  sufficient  time 
to  prevent  collision,  in  such  manner  as  to  make  them  most 
visible,  and  so  that  the  green  light  shall  not  be  seen  on  the 
port  side  nor  the  red  light  on  the  starboard  side,  nor,  if  prac- 
ticable, more  than  two  points  abaft  the  beam  on  their  re- 
spective sides.  To  make  the  use  of  these  portable  lights 
more  certain  and  easy  the  lanterns  containing  them  shall  each 
be  painted  outside  with  the  color  of  the  light  they  respec- 
tivelv  contain,  and  shall  be  provided  with  proper  screens. 

IXierhts  for  small  steam  and  sail  vessels  and  open  boats.] 

(As  Amended  28  Stat.  82.) 

Art.  y.  Steam-vessels  of  less  than  forty,  and  vessels  under 
oars  or  sails  of  less  than  twenty  tons  gross  tonnage,  respec- 
tively, and  rowing  boats,  when  under  way,  shall  not  be  re- 
quired to  carry  the  lights  mentioned  in  article  two  (a),  (b), 
and  (c),  but  if  they  do  not  carry  them  they  shall  be  provided 
with  the  following  lights : 

First.  Steam-vessels  of  less  than  forty  tons  shall  carry — 

(a)  In  the  fore  part  of  the  vessel,  or  on  or  in  front  of  the 
funnel,  where  it  can  best  be  seen,  and  at  a  height  above  the 
gunwale  of  not  less  than  nine  feet,  a  bright  white  light  con- 
structed and  fixed  as  prescribed  in  article  two  (a),  and  of 
such  a  character  as  to  be  visible  at  a  distance  of  at  least  two 
miles. 

(b)  Green  and  red  side-lights  constructed  and  fixed  as 
prescribed  in  article  two  (b)  and  (c),  and  of  such  a  character 
as  to  be  visible  at  a  distance  of  at  least  one  mile,  or  a  com- 
bined lantern  showing  a  green  light  and  a  red  light  from 
right  ahead  to  two  points  abaft  the  beam  on  their  respective 


Appdx.)  INTERNATIONAL    RULES.  379 

sides.  Such  lanterns  shall  be  carried  not  less  than  three  feet 
below  the  white  light. 

Second.  Small  steamboats,  such  as  are  carried  by  sea- 
going vessels,  may  carry  the  white  light  at  a  less  height  than 
nine  feet  above  the  gunwale,  but  it  shall  be  carried  above  the 
combined  lantern  mentioned  in  subdivision  one  (b). 

Third.  Vessels  under  oars  or  sails  of  less  than  twenty 
tons  shall  have  ready  at  hand  a  lantern  with  a  green  glass 
on  one  side  and  a  red  glass  on  the  other,  which,  on  the  ap- 
proach of  or  to  other  vessels,  shall  be  exhibited  in  sufficient 
time  to  prevent  collision,  so  that  the  green  light  shall  not  be 
seen  on  the  port  side  nor  the  red  light  on  the  starboard  side. 

Fourth.  Rowing  boats,  whether  under  oars  or  sail,  shall 
have  ready  at  hand  a  lantern  showing  a  white  light  which 
shall  be  temporarily  exhibited  in  sufficient  time  to  prevent 
collision. 

The  vessels  referred  to  in  this  article  shall  not  be  obliged 
to  carry  the  lights  prescribed  by  article  four  (a)  and  article 
eleven,  last  paragraph. 

f Lights  for  pilot  vessels.] 

(Ab  Amended  February  19,  1900.  31  Stat.  30.) 

Art.  8.  Pilot-vessels  when  engaged  on  their  station  on  pilot- 
age duty  shall  not  show  the  lights  required  for  other  vessels, 
but  shall  carry  a  white  light  at  the  masthead,  visible  all  around 
the  horizon,  and  shall  also  exhibit  a  flare-up  light  or  flare-up 
lights  at  short  intervals,  which  shall  never  exceed  fifteen 
minutes. 

On  the  near  approach  of  or  to  other  vessels  they  shall 
have  their  side-lights  lighted,  ready  for  use,  and  shall  flash 
or  show  them  at  short  intervals,  to  indicate  the  direction  in 
which  they  are  heading,  but  the  green  light  shall  not  be 
shown  on  the  port  side,  nor  the  red  light  on  the  starboard 
side. 

A  pilot-vessel  of  such  a  class  as  to  be  obliged  to  go  along- 
side of  a  vessel  to  put  a  pilot  on  board  may  show  the  white 


380  STATUTES    REGULATING    NAVIGATION.  (Appdi.  _ 

light  instead  of  carrying  it  at  the  masthead,  and  may,  instead 
of  the  colored  lights  above  mentioned,  have  at  hand,  ready 
for  use,  a  lantern  with  green  glass  on  the  one  side  and  red 
glass  on  the  other,  to  be  used  as  prescribed  above. 

Pilot-vessels  when  not  engaged  on  their  station  on  pilot- 
age duty  shall  carry  lights  similar  to  those  of  other  vessels 
of  their  tonnage. 

That  a  steam  pilot-vessel,  when  engaged  on  her  station  on 
pilotage  duty  and  in  waters  of  the  United  States,  and  not 
at  anchor,  shall,  in  addition  to  the  lights  required  for  all 
pilot-boats,  carry  at  a  distance  of  eight  feet  below  her  white 
masthead  light  a  red  light,  visible  all  around  the  horizon 
and  of  such  a  character  as  to  be  visible  on  a  dark  night 
with  ,'.  clear  atmosphere  at  a  distance  of  at  least  two  miles, 
and  also  the  colored  side-lights  required  to  be  carried  by 
vessels  when  under  way. 

When  engaged  on  her  station  on  pilotage  duty  and  in 
waters  of  the  United  States,  and  at  anchor,  she  shall  carry 
in  addition  to  the  lights  required  for  all  pilot-boats  the  red 
light  above  mentioned,  but  not  the  colored  side-lights. 

When  not  engaged  on  her  station  on  pilotage  duty,  she 
shall  carry  the  same  lights  as  other  steam  vessels. 

[Lights,  etc.,  of  fishing  vessels.] 

Art.  9.  [Article  nine,  act  of  August  19,  1890,  was  repealed 
by  act  of  May  28,  1894,  and  article  10,  act  of  March  3,  1885, 
was  re-enacted  in  part  by  act  of  August  13,  1894,  and  is 
reproduced  here  in  part  as  article  9.     See  28  Stat.  83,  281.] 

Fishing-vessels  of  less  than  twenty,  tons  net  registered 
tonnage,  when  under  way  and  when  not  having  their  nets, 
trawls,  dredges,  or  lines  in  the  water,  shall  not  be  obliged 
to  carry  the  colored  side-lights ;  but  every  such  vessel  shall 
in  lieu  thereof  have  ready  at  hand  a  lantern  with  a  green 
glass  on  the  one  side  and  a  red  glass  on  the  other  side,  and 
on  approaching  to  or  being  approached  by  another  vessel 
such  lantern  shall  be  exhibited  in  sufficient  time  to  prevent 


Appdx.)  INTERNATIONAL    RULES.  381 

collision,  so  that  the  green  light  shall  not  be  seen  on  the 
port  side  nor  the  red  light  on  the  starboard  side. 

[Lights  for  fishing  vessels  off  European  coasts.] 

The  following  portion  of  this  article  applies  only  to  fish- 
ing-vessels and  boats  when  in  the  sea  off  the  coast  of  Eu- 
rope lying  north  of  Cape  Finisterre : 

(a)  All  fishing-vessels  and  fishing-boats  of  twenty  tons  net 
registered  tonnage  or  upward,  when  under  way  and  when 
not  having  their  nets,  trawls,  dredges,  or  lines  in  the  water, 
shall  carry  and  show  the  same  lights  as  other  vessels  under 
way. 

(b)  All  vessels  when  engaged  in  fishing  with  drift-nets 
shall  exhibit  two  white  lights  from  any  part  of  the  vessel 
where  they  can  be  best  seen.  Such  lights  shall  be  placed 
so  that  the  vertical  distance  between  them  shall  be  not  less 
than  six  feet  and  not  more  than  ten  feet,  and  so  that  the 
horizontal  distance  between  them,  measured  in  a  line  with 
the  keel  of  the  vessel,  shall  be  not  less  than  five  feet  and  not 
more  than  ten  feet.  The  lower  of  these  two  lights  shall  be 
the  more  forward,  and  both  of  them  shall  be  of  such  a  char- 
acter and  contained  in  lanterns  of  such  construction  as  to 
show  all  round  the  horizon,  on  a  dark  night,  with  a  clear 
atmosphere,  for  a  distance  of  not  less  than  three  miles. 

(c)  All  vessels  when  trawling,  dredging,  or  fishing  with 
any  kind  of  drag-nets  shall  exhibit,  from  some  part  of  the 
vessel  where  they  can  be  best  seen,  two  lights.  One  of  these 
lights  shall  be  red  and  the  other  shall  be  white.  The  red 
light  shall  be  above  the  white  light,  and  shall  be  at  a  vertical 
distance  from  it  of  not  less  than  six  feet  and  not  more  than 
twelve  feet ;  and  the  horizontal  distance  between  them,  if 
any,  shall  not  be  more  than  ten  feet.  These  two  lights  shall 
be  of  such  a  character  and  contained  in  lanterns  of  such  con- 
struction as  to  be  visible  all  round  the  horizon,  on  a  dark 
night,  with  a  clear  atmosphere,  the  white  light  to  a  distance 
of  not  less  than  three  miles,  and  the  red  light  of  not  less 
than  two  miles. 


382  STATUTES    UKGULATING    NAVIGATION.  (Appdx.* 

(d)  A  vessel  employed  in  line-fishing,  with  her  lines  out, 
shall  carry  the  same  lights  as  a  vessel  when  engaged  in  fish- 
ing with  drift-nets. 

(e)  If  a  vessel,  when  fishing  with  a  trawl,  dredge,  or  any 
kind  of  drag-net,  becomes  stationary  in  consequence  of  her 
gear  getting  fast  to  a  rock  or  other  obstruction,  she  shall 
show  the  light  and  make  the  fog-signal  for  a  vessel  at  an- 
chor. 

(f)  Fishing-vessels  may  at  any  time  use  a  flare-up  in  addi- 
tion to  the  lights  which  they  are  by  this  article  required  to 
carry  and  show.  All  flare-up  lights  exhibited  by  a  vessel 
when  trawling,  dredging,  or  fishing  with  any  kind  of  drag- 
net shall  be  shown  at  the  after-part  of  the  vessel,  excepting 
that  if  the  vessel  is  hanging  by  the  stern  to  her  trawl,  dredge, 
or  drag-net,  they  shall  be  exhibited  from  the  bow. 

(g)  Every  fishing-vessel  when  at  anchor  between  sunset 
and  sunrise  shall  exhibit  a  white  light,  visible  all  round  the 
horizon  at  a  distance  of  at  least  one  mile. 

(h)  In  a  fog  a  drift-net  vessel  attached  to  her  nets,  and 
a  vessel  when  trawling,  dredging,  or  fishing  with  any  kind 
of  drag-net,  and  a  vessel  employed  in  line-fishing  with  her 
lines  out,  shall,  at  intervals  of  not  more  than  two  minutes, 
make  a  blast  with  her  fog-horn  and  ring  her  bell  alternately. 

[Lights  for  an  overtaken  vessel.] 

Art.  10.  A  vessel  which  is  being  overtaken  by  another 
shall  show  from  her  stern  to  such  last-mentioned  vessel  a 
white  light  or  a  flare-up  light. 

The  white  light  required  to  be  shown  by  this  article  may 
be  fixed  and  carried  in  a  lantern,  but  in  such  case  the  lan- 
tern shall  be  so  constructed,  fitted,  and  screened  that  it  shall 
throw  an  unbroken  light  over  an  arc  of  the  horizon  of  twelve 
points  of  the  compass,  namely,  for  six  points  from  right  aft 
on  each  side  of  the  vessel,  so  as  to  be  visible  at  a  distance  of 
at  least  one  mile.  Such  light  shall  be  carried  as  nearly  as 
practicable  on  the  same  level  as  the  side  lights. 


Appdx.)  INTERNATIONAL   RULES.  383 

[Anchor  lights.] 

Art.  II.  A  vessel  under  one  hundred  and  fifty  feet  in 
length  when  at  anchor  shall  carry  forward  where  it  can  best 
be  seen,  but  at  a  height  not  exceeding  twenty  feet  above  the 
hull,  a  white  light,  in  a  lantern  so  constructed  as  to  show  a 
clear,  uniform,  and  unbroken  light  visible  all  around  the 
horizon  at  a  distance  of  at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upwards  in 
length,  when  at  anchor,  shall  carry  in  the  forward  part  of  the 
vessel,  at  a  height  of  not  less  than  twenty  and  not  exceeding 
forty  feet  above  the  hull,  one  such  light,  and  at  or  near  the 
stern  of  the  vessel,  and  at  such  a  height  that  it  shall  be  not 
less  than  fifteen  feet  lower  than  the  forward  light,  another 
such  light. 

The  length  of  a  vessel  shall  be  deemed  to  be  the  length 
appearing  in  her  certificate  of  registry. 

A  vessel  aground  in  or  near  a  fair-way  shall  carry  the 
above  light  or  lights  and  the  two  red  lights  prescribed  by 
article  four  (a). 

[Special  signals.] 

Art.  12.  Every  vessel  may,  if  necessary  in  order  to  attract 
attention,  in  addition  to  the  lights  which  she  is  by  these 
rules  required  to  carry,  show  a  flare-up  light  or  use  any 
detonating  signal  that  can  not  be  mistaken  for  a  distress 
signal. 

[Naval  lights  and  recognition  signals.] 

Art.  13.  Nothing  in  these  rules  shall  interfere  with  the 
operation  of  any  special  rules  made  by  the  government  of 
any  nation  with  respect  to  additional  station  and  signal- 
lights  for  two  or  more  ships  of  war  or  for  vessels  sailing  un- 
der convoy,  or  with  the  exhibition  of  recognition  signals 
adopted  by  ship-owners,  which  have  been  authorized  by  their 
respective  governments  and  duly  registered  and  published. 


oS4  STATUTES    REGULATING    NAVIGATION.  (Appdx.* 

[Steam  vessel  under  sail  by  day.] 

Art.  14.  A  steam-vessel  proceeding  under  sail  only  but 
having  her  funnel  up,  shall  carry  in  day-time,  forward,  where 
it  can  best  be  seen,  one  black  ball  or  shape  two  feet  in. 
diameter. 

SOUND  SIGNALS  FOB  FOG,  AND  SO  FORTH. 

[Preliminary.] 

(As  Amended  29  Stat.  381.) 

Art.  15.  All  signals  prescribed  by  this  article  for  vessels 
under  way  shall  be  given : 

First.  By  "steam  vessels"  on  the  whistle  or  siren. 

Second.  By  "sailing  vessels"  and  "vessels  towed"  on  the 
fog  horn. 

The  words  "prolonged  blast"  used  in  this  article  shall 
mean  a  blast  of  from  four  to  six  seconds'  duration. 

A  steam-vessel  shall  be  provided  with  an  efficient  whistle 
or  siren,  sounded  by  steam  or  by  some  substitute  for  steam, 
so  placed  that  the  sound  may  not  be  intercepted  by  any  ob- 
struction, and  with  an  efficient  fog  horn,  to  be  sounded  by 
mechanical  means,  and  also  with  an  efficient  bell.  (In  all 
cases  where  the  rules  require  a  bell  to  be  used  a  drum  may 
be  substituted  on  board  Turkish  vessels,  or  a  gong  where 
such  articles  are  used  on  board  small  sea-going  vessels.)  A 
sailing  vessel  of  twenty  tons  gross  tonnage  or  upward  shall 
be  provided  with  a  similar  fog  horn  and  bell. 

In  fog,  mist,  falling  snow,  or  heavy  rain-storms,  whether 
by  day  or  night,  the  signals  described  in  this  article  shall  be 
used  as  follows,  namely: 

[Steam  vessel  under  way.] 

(a)  A  steam  vessel  having  way  upon  her  shall  sound,  at 
intervals  of  not  more  than  two  minutes,  a  prolonged  blast. 

(b)  A  steam  vessel  under  way,  but  stopped,  and  having  no 
way  upon  her,  shall  sound,  at  intervals  of  not  more  than  two 


Appdx.)  INTERNATIONAL    RULES.  385 

minutes,  two  prolonged  blasts,  with  an  interval  of  about  one 
second  between. 

[Sail  vessel  under  way.] 

(c)  A  sailing  vessel  under  way  shall  sound,  at  intervals  of 
not  more  than  one  minute,  when  on  the  starboard  tack,  one 
blast ;  when  on  the  port  tack,  two  blasts  in  succession,  and 
when  with  the  wind  abaft  the  beam,  three  blasts  in  succes- 
sion. 

[Vessels  at  anchor  or  not  under  way.] 

(d)  A  vessel  when  at  anchor  shall,  at  intervals  of  not  more 
than  one  minute,  ring  the  bell  rapidly  for  about  five  seconds. 

[Vessels  towing  or  towed.] 

(e)  A  vessel  when  towing,  a  vessel  employed  in  laying  or 
in  picking  up  a  telegraph  cable,  and  a  vessel  under  way. 
which  is  unable  to  get  out  of  the  way  of  an  approaching 
vessel  through  being  not  under  command,  or  unable  to  ma- 
neuver as  required  by  the  rules,  shall,  instead  of  the  signals 
prescribed  in  subdivisions  (a)  and  (c)  of  this  article,  at  in- 
tervals of  not  more  than  two  minutes,  sound  three  blasts  in 
succession,  namely:  One  prolonged  blast  followed  by  two 
short  blasts.  A  vessel  towed  may  give  this  signal  and  she 
shall  not  give  any  other. 

[Small  sailing  vessels  and  boats.] 

Sailing  vessels  and  boats  of  less  than  twenty  tons  gross 
tonnage  shall  not  be  obliged  to  give  the  above-mentioned 
signals,  but,  if  they  do  not,  they  shall  make  some  other 
efficient  sound  signal  at  intervals  of  not  more  than  one  min- 
ute. 

Speed  of  ships  to  be  moderate  in  fog,  and  so  forth. 

Art.  16.  Every  vessel  shall,  in  a  fog,  mist,  falling  snow,  or 
heavy  rain-storms,  go  at  a  moderate  speed,  having  careful 
regard  for  the  existing  circumstances  and  conditions. 

A  steam  vessel  hearing,  apparently  forward  of  her  beam, 
the  fog-signal  of  a  vessel  the  position  of  which  is  not  ascer- 

HUGHES.AD.— 25 


386  STATUTES    REGULATING    NAVIGATION.  (Appdx* 

tained  shall,  so  far  as  the  circumstances  of  the  case  admit, 
stop  her  engines,  and  then  navigate  with  caution  until  dan- 
ger of  collision  is  over. 

STEERING  AND  SAILING  RULES. 
Preliminary — Risk  of  collision. 

Risk  of  collision  can,  when  circumstances  permit,  be  as- 
certained by  carefully  watching  the  compass  bearing  of  an 
approaching  vessel.  If  the  bearing  does  not  appreciably 
change,  such  risk  should  be  deemed  to  exist. 

[Sailing  vessels.] 

Art.  17.  When  two  sailing  vessels  are  approaching  one 
another,  so  as  to  involve  risk  of  collision,  one  of  them  shall 
keep  out  of  the  way  of  the  other,  as  follows,  namely : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  close-hauled  on  the 
Starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  different 
sides,  the  vessel  which  has  the  wind  on  the  port  side  shall 
keep  out  of  the  way  of  the  other. 

(d)  When  both  are  running  free,  with  the  wind  on  the 
same  side,  the  vessel  which  is  to  the  windward  shall  keep 
out  of  the  way  of  the  vessel  which  is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the 
way  of  the  other  vessel. 

[Steam  vessels.] 

Art.  18.  When  two  steam-vessels  are  meeting  end  on,  or 
nearly  end  on,  so  as  to  involve  risk  of  collision,  each  shall 
alter  her  course  to  starboard,  so  that  each  may  pass  on  the 
port  side  of  the  other. 

This  article  only  applies  to  cases  where  vessels  are  meet- 
ing end  on,  or  nearly  end  on,  in  such  a  manner  as  to  involve 
risk  of  collision,  and  does  not  apply  to  two  vessels  which 


Appdx.)  INTERNATIONAL    RULES.  387 

must,  if  both  keep  on  their  respective  courses,  pass  clear  of 
each  other. 

The  only  cases  to  which  it  does  apply  are  when  each  of  the 
two  vessels  is  end  on,  or  nearly  end  on,  to  the  other;  in 
other  words,  to  cases  in  which,  by  day,  each  vessel  sees  the 
masts  of  the  other  in  a  line,  or  nearly  in  a  line,  with  her  own  ; 
and  by  night,  to  cases  in  which  each  vessel  is  in  such  a  posi- 
tion as  to  see  both  the  side-lights  of  the  other. 

It  does  not  apply  by  day  to  cases  in  which  a  vessel  sees 
another  ahead  crossing  her  own  course;  or  by  night,  to 
cases  where  the  red  light  of  one  vessel  is  opposed  to  the  red 
light  of  the  other,  or  where  the  green  light  of  one  vessel  is 
opposed  to  the  green  light  of  the  other,  or  where  a  red  light 
without  a  green  light,  or  a  green  light  without  a  red  light,  is 
seen  ahead,  or  where  both  green  and  red  lights  are  seen  any- 
where but  ahead. 

[Two   steam-vessels   crossing.] 

Art.  19.  When  two  steam-vessels  are  crossing,  so  as  to 
involve  risk  of  collision,  the  vessel  which  has  the  other  on 
her  own  starboard  side  shall  keep  out  of  the  way  of  the 
other. 

[Steam-vessel  shall  keep   out  of  the  way  of  sailing-vessel.] 

Art.  20.  When  a  steam-vessel  and  a  sailing-vessel  are  pro- 
ceeding in  such  directions  as  to  involve  risk  of  collision,  the 
steam-vessel  shall  keep  out  of  the  way  of  the  sailing-vessel. 

[Course    and    speed.] 
(As  Amended  28  Stat.  83.) 

Art.  21.  Where,  by  any  of  these  rules,  one  of  two  vessels  is 
to  keep  out  of  the  way  the  other  shall  keep  her  course  and 
speed. 

Note. — When,  in  consequence  of  thick  weather  or  other 
causes,  such  vessel  finds  herself  so  close  that  collision  can 
not  be  avoided  by  the  action  of  the  giving-way  vessel  alone, 
she  also  shall  take  such  action  as  will  best  aid  to  avert  col- 
lision. 


388  STATUTES    REGULATING    NAVIGATION.  (Afpdx. 

[Crossing   ahead.] 

Art.  22.  Every  vessel  which  is  directed  by  these  rules  to 
keep  out  of  the  way  of  another  vessel  shall,  if  the  circumstan- 
ces of  the  case  admit,  avoid  crossing  ahead  of  the  other. 

[Steam-vessel  shall  slacken  speed  or  stop.] 

Art.  23.  Every  steam-vessel  which  is  directed  by  these 
rules  to  keep  out  of  the  way  of  another  vessel  shall,  on  ap- 
proaching her,  if  necessary,  slacken  her  speed  or  stop  or  re- 
verse. 

[Overtaking  vessels.] 

Art.  24.  Notwithstanding  anything  contained  in  these  rules 
every  vessel,  overtaking  any  other,  shall  keep  out  of  the  way 
of  the  overtaken  vessel. 

Every  vessel  coming  up  with  another  vessel  from  any  di- 
rection more  than  two  points  abaft  her  beam,  that  is,  in  such 
a  position,  with  reference  to  the  vessel  which  she  is  overtak- 
ing that  at  night  she  would  be  unable  to  see  either  of  that 
vessel's  side-lights,  shall  be  deemed  to  be  an  overtaking  ves- 
sel; and  no  subsequent  alteration  of  the  bearing  between 
the  two  vessels  shall  make  the  overtaking  vessel  a  crossing 
vessel  within  the  meaning  of  these  rules,  or  relieve  her  of  the 
duty  of  keeping  clear  of  the  overtaken  vessel  until  she  is 
finally  past  and  clear. 

As  by  day  the  overtaking  vessel  can  not  always  know  with 
certainty  whether  she  is  forward  of  or  abaft  this  direction 
from  the  other  vessel  she  should,  if  in  doubt,  assume  that  she 
is  an  overtaking  vessel  and  keep  out  of  the  way. 

[Narrow  channels.] 

Art.  25.  In  narrow  channels  every  steam-vessel  shall,  when 
it  is  safe  and  practicable,  keep  to  that  side  of  the  fair-way  or 
mid-channel  which  lies  on  the  starboard  side  of  such  vessel. 

[Right  of  way  of  fishing  vessels.] 

Art.  26.  Sailing  vessels  under  way  shall  keep  out  of  the 
way  of  sailing  vessels  or  boats  fishing  with  nets,  or  lines,  or 


Appdx.)  INTERNATIONAL    RULES.  389 

trawls.  This  rule  shall  not  give  to  any  vessel  or  boat  en- 
gaged in  fishing  the  right  of  obstructing  a  fair-way  used  by 
vessels  other  than  fishing  vessels  or  boats. 

[General  prudential  rule.] 

Art.  27.  In  obeying  and  construing  these  rules  due  regard 
shall  be  had  to  all  dangers  of  navigation  and  collision,  and  to 
any  special  circumstances  which  may  render  a  departure 
from  the  above  rules  necessary  in  order  to  avoid  immediate 
danger. 

Sound  signals  for  vessels  in  sight  of  one  another. 

Art.  28.  The  words  "short  blast"  used  in  this  article  shall 
mean  a  blast  of  about  one  second's  duration. 

When  vessels  are  in  sight  of  one  another,  a  steam-vessel 
under  way,  in  taking  any  course  authorized  or  required  bv 
these  rules,  shall  indicate  that  course  by  the  following  sig- 
nals on  her  whistle  or  siren,  namely : 

One  short  blast  to  mean,  "I  am  directing  my  course  to 
starboard." 

Two  short  blasts  to  mean,  "I  am  directing  my  course  to 
port." 

Three  short  blasts  to  mean,  "My  engines  are  going  at  full 
speed  astern." 

No   vessel,   under  any  circumstances,   to    neglect  proper 
precautions. 

Art.  29.  Nothing  in  these  rules  shall  exonerate  any  ves- 
sel or  the  owner  or  master  or  crew  thereof,  from  the  con- 
sequences of  any  neglect  to  carry  lights  or  signals,  or  of  any 
neglect  to  keep  a  proper  lookout,  or  of  the  neglect  of  any 
precaution  which  may  be  required  by  the  ordinary  practice 
of  seamen,  or  by  the  special  circumstances  of  the  case. 

Reservation  of  rules  for  harbors  and  inland  navigation. 

Art.  30.  Nothing  in  these  rules  shall  interfere  with  the  op- 
eration of  a  special  rule,  duly  made  by  local  authority,  rela- 
tive to  the  navigation  of  any  harbor,  river,  <>r  inland  waters. 


390  STATUTES    REGULATING    NAVIGATION.  (Appdx.    % 

Distress  signals. 

(As  Amended  28  Stat.  83.) 
Art.  31.  When  a  vessel  is  in  distress  and  requires  assistance 
from  other  vessels  or  from  the  shore  the  following  shall  be 
the  signals  to  be  used  or  displayed  by  her,  either  together  or 
separately,  namely : 
In  the  daytime — 

First.  A  gun  or  other  explosive  signal  fired  at  intervals 
of  about  a  minute. 

Second.  The  international  code  signal  of  distress  indicated 
by  N  C. 

Third.  The  distance  signal,  consisting  of  a  square  flag, 
having  either  above  or  below  it  a  ball  or  anything  resembling 
a  ball. 

Fourth.  A  continuous  sounding  with  any  fog-signal  ap- 
paratus. 
At  night — 

First.  A  gun  or  other  explosive  signal  fired  at  intervals 
of  about  a  minute. 

Second.  Flames  on  the  vessel  (as  from  a  burning  tar  bar- 
rel, oil  barrel  and  so  forth). 

Third.  Rockets  or  shells  throwing  stars  of  any  color  or 
description,  fired  one  at  a  time,  at  short  intervals. 

Fourth.  A  continuous  sounding  with  any  fog-signal  ap- 
paratus. 

Sec.  2.  That  all  laws  or  parts  of  laws  inconsistent  with  the 
foregoing  regulations  for  preventing  collisions  at  sea  for  the 
navigation  of  all  public  and  private  vessels  of  the  United 
States  upon  the  high  seas  and  in  all  waters  connected  there- 
with navigable  by  sea-going  vessels  are  hereby  repealed. 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  391 

(2)  INLAND  RULES.    (30  STAT.  96.) 

An  act  to  adopt  regulations  for  preventing  collisions  upon 

certain  harbors,  rivers,  and  inland  waters  of  the  United 

States. 

Whereas  the  provisions  of  chapter  eight  hundred  and  two 
of  the  Laws  of  eighteen  hundred  and  ninety,  and  the 
amendments  thereto,  adopting  regulations  for  preventing 
collisions  at  sea  [i.  e.  International  rules  supra],  apply  to 
all  waters  of  the  United  States  connected  with  the  high 
seas  navigable  by  sea-going  vessels,  except  so  far  as  the 
navigation  of  any  harbor,  river,  or  inland  waters  is  regulat- 
ed by  special  rules  duly  made  by  local  authority ;   and 

Whereas  it  is  desirable  that  the  regulations  relating  to  the 
navigation  of  all  harbors,  rivers,  and  inland  waters  of  the 
United  States,  except  the  Great  Lakes  and  their  connecting 
and  tributary  waters  as  far  east  as  Montreal  and  the  Red 
River  of  the  North  and  rivers  emptying  into  the  Gulf  of 
Mexico  and  their  tributaries,  shall  be  stated  in  one  act: 
Therefore, 

Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  Congress  assembled,  that 
the  following  regulations  for  preventing  collision  shall  be 
followed  by  all  vessels  navigating  all  harbors,  rivers,  and  in- 
land waters  of  the  United  States,  except  the  Great  Lakes 
and  their  connecting  and  tributary  waters  as  far  east  as 
Montreal  and  the  Red  River  of  the  North  and  rivers  empty- 
ing into  the  Gulf  of  Mexico  and  their  tributaries,  and  are 
hereby  declared  special  rules  duly  made  by  local  authority : 

PRELIMINARY. 

In  the  following  rules  every  steam-vessel  which  is  under 
sail  and  not  under  steam  is  to  be  considered  a  sailing-vessel, 
and  every  vessel  under  steam,  whether  tinder  sail  or  not,  is 
to  be  considered  a  steam-vessel. 


3',»2  STATUTES    REGULATING    NAVIGATION.  (Appdx.  _ 

The  word  "steam-vessel"  shall  include  any  vessel  pro- 
pelled by  machinery. 

A  vessel  is  "under  way,"  within  the  meaning  of  these  rules, 
when  she  is  not  at  anchor,  or  made  fast  to  the  shore,  or 
aground. 

RULES   CONCERNING  EIGHTS  AND   SO  FORTH. 

The  word  "visible"  in  these  rules,  when  applied  to  lights, 
shall  mean  visible  on  a  dark  night  with  a  clear  atmosphere. 

Article  I.  The  rules  concerning  lights  shall  be  complied 
with  in  all  weathers  from  sunset  to  sunrise,  and  during  such 
time  no  other  lights  which  may  be  mistaken  for  the  prescrib- 
ed lights  shall  be  exhibited. 

I  Steam   vessels — Masthead  light.] 

Art.  2.  A  steam-vessel  when  under  way  shall  carry — (a) 
On  or  in  the  front  of  the  foremast,  or,  if  a  vessel  without  a 
foremast,  then  in  the  fore  part  of  the  vessel,  a  bright  white 
light  so  constructed  as  to  show  an  unbroken  light  over  an 
arc  of  the  horizon  of  twenty  points  of  the  compass,  so  fixed 
as  to  throw  the  light  ten  points  on  each  side  of  the  vessel, 
namely,  from  right  ahead  to  two  points  abaft  the  beam  on 
either  side,  and  of  such  a  character  as  to  be  visible  at  a  dis- 
tance of  at  least  five  miles. 

[Steam  vessels — Side  lights.] 

(b)  On  the  starboard  side  a  green  light  so  constructed  as 
to  show  an  unbroken  light  over  an  arc  of  the  horizon  of  ten 
points  of  the  compass,  so  fixed  as  to  throw  the  light  from 
right  ahead  to  two  points  abaft  the  beam  on  the  starboard 
side,  and  of  such  a  character  as  to  be  visible  at  a  distance  of 
at  least  two  miles. 

(c)  On  the  port  side  a  red  light  so  constructed  as  to  show 
an  unbroken  light  over  an  arc  of  the  horizon  of  ten  points 
of  the  compass,  so  fixed  as  to  throw  the  light  from  right 
ahead  to  two  points  abaft  the  beam  on  the  port  side,  and  of 
such  a  character  as  to  be  visible  at  a  distance  of  at  least  two 
miles. 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  393 

(d)  The  said  green  and  red  side-lights  shall  be  fitted  with 
inboard  screens  projecting  at  least  three  feet  forward  from 
the  light,  so  as  to  prevent  these  lights  from  being  seen  across 
the  bow. 

[Steam  vessels — Range  lights.] 

(e)  A  sea-going  steam-vessel  when  under  way  may  carry 
an  additional  white  light  similar  in  construction  to  the  light 
mentioned  in  subdivision  (a).  These  two  lights  shall  be  so 
placed  in  line  with  the  keel  that  one  shall  be  at  least  fifteen 
feet  higher  than  the  other,  and  in  such  a  position  with  refer- 
ence to  each  other  that  the  lower  light  shall  be  forward  of 
the  upper  one.  The  vertical  distance  between  these  lights 
shall  be  less  than  the  horizontal  distance,  (f)  All  steam- 
vessels  (except  sea-going  vessels  and  ferry-boats),  shall  car- 
ry in  addition  to  green  and  red  lights  required  by  article  two 
(b),  (c),  and  screens  as  required  by  article  two  (d),  a  central 
range  of  two  white  lights;  the  after-light  being  carried  at 
an  elevation  at  least  fifteen  feet  above  the  light  at  the  head 
of  the  vessel.  The  head-light  shall  be  so  constructed  as  to 
show  an  unbroken  light  through  twenty  points  of  the  com- 
pass, namely,  from  right  ahead  to  two  points  abaft  the  beam 
on  either  side  of  the  vessel,  and  the  after-light  so  as  to  show 
all  around  the  horizon. 

[Steam-vessels   when  towing.] 

Art.  3.  A  steam-vessel  when  towing  another  vessel  shall, 
in  addition  to  her  side-lights,  carry  two  bright  white  lights 
in  a  vertical  line  one  over  the  other,  not  less  than  three  feet 
apart,  and  when  towing  more  than  one  vessel  shall  carry  an 
additional  bright  white  light  three  feet  above  or  below  such 
lights,  if  the  length  of  the  tow  measuring  from  the  stern  of 
the  towing  vessel  to  the  stern  of  the  last  vessel  towed  ex- 
ceeds six  hundred  feet.  E'ach  of  these  lights  shall  be  of  the 
same  construction  and  character,  and  shall  be  carried  in  the 
same  position  as  the  white  light  mentioned  in  article  two 
(a)  or  the  after  range  light  mentioned  in  article  two  (f). 


391  STATUTES    REGULATING    NAVIGATION.  (Appdx 

Such  steam-vessel  may  carry  a  small  white  light  abaft  the 
funnel  or  aftermast  for  the  vessel  towed  to  steer  by,  but  such 
light  shall  not  be  visible  forward  of  the  beam. 

I  Lights  for  sailing  vessels  and  vessels  in  tow.] 

Art.  5.  A  sailing-vessel  under  way  or  being  towed  shall 
carry  the  same  lights  as  are  prescribed  by  article  two  for  a 
steam-vessel  under  way,  with  the  exception  of  the  white 
lights  mentioned  therein,  which  they  shall  never  carry. 

[Lights  for   small  vessels.] 

Art.  6.  Whenever,  as  in  the  case  of  vessels  of  less  than  ten 
gross  tons  under  way  during  bad  weather,  the  green  and  red 
side-lights  can  not  be  fixed,  these  lights  shall  be  kept  at 
hand,  lighted  and  ready  for  use ;  and  shall,  on  the  approach 
of  or  to  other  vessels,  be  exhibited  on  their  respective  sides 
in  sufficient  time  to  prevent  collision,  in  such  manner  as  to 
make  them  most  visible,  and  so  that  the  green  light  shall 
not  be  seen  on  the  port  side  nor  the  red  light  on  the  star- 
board side,  nor,  if  practicable,  more  than  two  points  abaft 
the  beam  on  their  respective  sides.  To  make  the  use  of 
these  portable  lights  more  certain  and  easy  the  lanterns 
containing  them  shall  each  be  painted  outside  with  the  color 
of  the  light  they  respectively  contain,  and  shall  be  provided 
with  proper  screens. 

Art.  7.  Rowing  boats,  whether  under  oars  or  sail,  shall 

have  ready  at  hand  a  lantern  showing  a  white  light  which 

shall  be  temporarily  exhibited  in  sufficient  time  to  prevent 

collision. 

[Lights  for  pilot  vessels.] 

(As  Amended  February  19,  1900,  SI  Stat.  30.) 

Art.  8.  Pilot-vessels  when  engaged  on  their  stations  on 
pilotage  duty  shall  not  show  the  lights  required  for  other 
vessels,  but  shall  carry  a  white  light  at  the  masthead,  visi- 
ble all  around  the  horizon,  and  shall  also  exhibit  a  flare-up 
light  or  flare-up  lights  at  short  intervals,  which  shall  never 
exceed  fifteen  minutes. 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  395 

On  the  near  approach  of  or  to  other  vessels  they  shall 
have  their  side-lights  lighted,  ready  for  use,  and  shall  flash  or 
show  them  at  short  intervals,  to  indicate  the  direction  in 
which  they  are  heading,  but  the  green  light  shall  not  be 
shown  on  the  port  side  nor  the  red  light  on  the  starboard 
side. 

A  pilot-vessel  of  such  a  class  as  to  be  obliged  to  go  along- 
side of  a  vessel  to  put  a  pilot  on  board  may  show  the  white 
light  instead  of  carrying  it  at  the  masthead,  and  may,  in- 
stead of  the  colored  lights  above  mentioned,  have  at  hand, 
ready  for  use,  a  lantern  with  a  green  glass  on  the  one  side 
and  a  red  glass  on  the  other,  to  be  used  as  prescribed  above. 

Pilot-vessels,  when  not  engaged  on  their  station  on  pilot- 
age duty,  shall  carry  lights  similar  to  those  of  other  vessels 
of  their  tonnage. 

That  a  steam  pilot  vessel,  when  engaged  on  her  station  on 
pilotage  duty  and  in  waters  of  the  United  States,  and  not  at 
anchor,  shall,  in  addition  to  the  lights  required  for  all  pilot 
boats,  carry  at  a  distance  of  eight  feet  below  her  white 
masthead  light  a  red  light,  visible  all  around  the  horizon 
and  of  such  a  character  as  to  be  visible  on  a  dark  night  with 
a  clear  atmosphere  at  a  distance  of  at  least  two  miles,  and 
also  the  colored  side  lights  required  to  be  carried  by  vessels 
when  under  way. 

When  engaged  on  her  station  on  pilotage  duty  and  in 
waters  of  the  United  States,  and  at  anchor,  she  shall  earn- 
in  addition  to  the  lights  required  for  all  pilot  boats  the  red 
light  above  mentioned,  but  not  the  colored  side  lights. 

When  not  engaged  on  her  station  on  pilotage  duty,  she 
shall  carry  the  same  lights  as  other  steam  vessels. 

[Lights,  etc.,  of  fishing  vessels.] 

Art.  9.  (a)  Fishing-vessels  of  less  than  ten  gross  tons, 
when  under  way  and  when  not  having  their  nets,  trawls, 
dredges,  or  lines  in  the  water,  shall  not  be  obliged  to  carry 
the  colored  side-lights;   but  every  such  vessel  shall,  in  lien 


396  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

thereof,  have  ready  at  hand  a  lantern  with  a  green  glass  on 
one  side  and  a  red  glass  on  the  other  side,  and  on  approach- 
ing to  or  being  approached  by  another  vessel  such  lantern 
shall  be  exhibited  in  sufficient  time  to  prevent  collision,  so 
that  the  green  light  shall  not  be  seen  on  the  port  side  nor  the 
red  light  on  the  starboard  side. 

(b)  All  fishing-vessels  and  fishing-boats  of  ten  gross  tons 
or  upward,  when  under  way  and  when  not  having  their 
nets,  trawls,  dredges,  or  lines  in  the  water,  shall  carry  and 
show  the  same  lights  as  other  vessels  under  way. 

(c)  All  vessels,  when  trawling,  dredging,  or  fishing  with 
any  kind  of  drag-nets  or  lines,  shall  exhibit,  from  some  part 
of  the  vessel  where  they  can  be  best  seen,  two  lights.  One 
of  these  lights  shall  be  red  and  the  other  shall  be  white. 
The  red  light  shall  be  above  the  white  light,  and  shall  be  at 
a  vertical  distance  from  it  of  not  less  than  six  feet  and  not 
more  than  twelve  feet ;  and  the  horizontal  distance  between 
them,  if  any,  shall  not  be  more  than  ten  feet.  These  two 
lights  shall  be  of  such  a  character  and  contained  in  lanterns 
of  such  construction  as  to  be  visible  all  around  the  horizon, 
the  white  light  a  distance  of  not  less  than  three  miles  and 
the  red  light  of  not  less  than  two  miles. 

[Lights  for  rafts,  or  other  craft,  not  provided  for.] 

(d)  Rafts,  or  other  water  craft  not  herein  provided  for, 
navigating  by  hand  power,  horse  power,  or  by  the  current 
of  the  river,  shall  carry  one  or  more  good  white  lights,  which 
shall  be  placed  in  such  manner  as  shall  be  prescribed  by 
the  board  of  supervising  inspectors  of  steam  vessels. 

[Lights  for  an  overtaken  vessel.] 

Art.  10.  A  vessel  which  is  being  overtaken  by  another, 
except  a  steam-vessel  with  an  after  range-light  showing  all 
around  the  horizon,  shall  show  from  her  stern  to  such  last- 
mentioned  vessel  a  white  light  or  a  flare-up  light. 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATEBS.  397 

[Anchor  lights.] 

Art.  II.  A  vessel  under  one  hundred  and  fifty  feet  in 
length,  when  at  anchor,  shall  carry  forward,  where  it  can 
best  be  seen,  but  at  a  height  not  exceeding  twenty  feet  above 
the  hull,  a  white  light  in  a  lantern  so  constructed  as  to  show 
a  clear,  uniform,  and  unbroken  light  visible  all  around  the 
horizon  at  a  distance  of  at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upwards  in 
length  when  at  anchor  shall  carry  in  the  forward  part  of  the 
vessel,  at  a  height  of  not  less  than  twenty  and  not  exceeding 
forty  feet  above  the  hull,  one  such  light,  and  at  or  near  the 
stern  of  the  vessel,  and  at  such  a  height  that  it  shall  be  not 
less  than  fifteen  feet  lower  than  the  forward  light,  another 
such  light. 

The  length  of  a  vessel  shall  be  deemed  to  be  the  length 
appearing  in  her  certificate  of  registry. 

[Special    signals.] 

Art.  12.  Every  vessel  may,  if  necessary,  in  order  to  at- 
tract attention,  in  addition  to  the  lights  which  she  is  by 
these  rules  required  to  carry,  show  a  flare-up  light  or  use 
any  detonating  signal  that  cannot  be  mistaken  for  a  distress 
signal. 

[Naval  lights  and  recognition  signals.] 

Art.  13.  Nothing  in  these  rules  shall  interfere  with  the 
operation  of  any  special  rules  made  by  the  government  of 
any  nation  with  respect  to  additional  station  and  signal 
lights  for  two  or  more  ships  of  war  or  for  vessels  sailing  un- 
der convoy,  or  with  the  exhibition  of  recognition  signals 
adopted  by  shipowners,  which  have  been  authorized  by  their 
respective  governments,  and  duly  registered  and  published. 

[Steam  vessel  under  sail  by  day.] 

Art.  14.  A  steam-vessel  proceeding  under  sail  only,  but 
having  her  funnel  up,  may  carry  in  daytime,  forward,  where 
it  can  best  be  seen,  one  black  ball  or  shape  two  feet  in 
diameter. 


398  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

SOUND  SIGNALS  FOR  FOG,  AND  SO  FORTH. 

[  Preliminary.  ] 

Art.  15.  All  signals  prescribed  by  this  article  for  vessels 
under  way  shall  be  given : 

1.  By  "steam-vessels"  on  the  whistle  or  siren. 

2.  By  "sailing-vessels"  and  "vessels  towed"  on  the  fog 
horn. 

The  words  "prolonged  blast"  used  in  this  article  shall 
mean  a  blast  of  from  four  to  six  seconds  duration. 

A  steam-vessel  shall  be  provided  with  an  efficient  whistle 
or  siren,  sounded  by  steam  or  by  some  substitute  for  steam, 
so  placed  that  the  sound  may  not  be  intercepted  by  any 
obstruction,  and  with  an  efficient  fog  horn ;  also  with  an 
efficient  bell.  A  sailing-vessel  of  twenty  tons  gross  tonnage 
or  upward  shall  be  provided  with  a  similar  fog  horn  and  bell. 

In  fog,  mist,  falling  snow,  or  heavy  rainstorms,  whether 
by  day  or  night,  the  signals  described  in  this  article  shall  be 
used  as  follows,  namely : 

[Steam  vessel  under  way.] 

(a)  A  steam-vessel  under  way  shall  sound,  at  intervals 
of  not  more  than  one  minute,  a  prolonged  blast. 

[Sail  vessel  under  way.] 

(c)  A  sailing  vessel  under  way  shall  sound,  at  intervals 
of  not  more  than  one  minute,  when  on  the  starboard  tack, 
one  blast ;  when  on  the  port  tack,  two  blasts  in  succession, 
and  when  with  the  wind  abaft  the  beam,  three  blasts  in  suc- 
cession. 

[Vessels  at  anchor  or  not  under  way.] 

(d)  A  vessel  when  at  anchor  shall,  at  intervals,  of  not 

more  than  one  minute,  ring  the  bell  rapidly  for  about  five 

seconds. 

[Vessels  towing  or  towed.] 

(e)  A  steam-vessel  when  towing,  shall,  instead  of  the 
signals  prescribed  in  subdivision  (a)  of  this  article,  at  in- 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  399 

tervals  of  not  more  than  one  minute,  sound  three  blasts  in 
succession,  namely,  one  prolonged  blast  followed  by  two 
short  blasts.  A  vessel  towed  may  give  this  signal  and  she 
shall  not  give  any  other. 

[Bafts  or  other  craft  not  provided  for.] 

(f)  All  rafts  or  other  water  craft,  not  herein  provided  for, 
navigating  by  hand  power,  horse  power,  or  by  the  current 
of  the  river,  shall  sound  a  blast  of  the  fog-horn,  or  equiva- 
lent signal,  at  intervals  of  not  more  than  one  minute. 

.Speed  of  ships  to  be  moderate  in  fog  and  so  forth. 

Art.  16.  Every  vessel  shall,  in  a  fog,  mist,  falling  snow,  or 
heavy  rainstorms,  go  at  a  moderate  speed,  having  careful 
regard  to  the  existing  circumstances  and  conditions. 

A  steam-vessel  hearing,  apparently  forward  of  her  beam, 
the  fog-signal  of  a  vessel  the  position  of  which  is  not  ascer- 
tained shall,  so  far  as  the  circumstances  of  the  case  admit, 
stop  her  engines,  and  then  navigate  with  caution  until  dan- 
ger of  collision  is  over. 

STEERING  AND  SAILING  RULES. 
Preliminary — Risk    of    collision. 

Risk  of  collision  can,  when  circumstances  permit,  be  as- 
certained by  carefully  watching  the  compass  bearing  of  an 
approaching  vessel.  If  the  bearing  does  not  appreciably 
change,  such  risk  should  be  deemed  to  exist. 

[Sailing  vessels.] 

Art.  17.  When  two  sailing-vessels  are  approaching  one 
another,  so  as  to  involve  risk  of  collision,  one  of  them  shall 
keep  out  of  the  way  of  the  other  as  follows,  namely: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  close-hauled  on  the 
starboard  tack. 


400  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

(c)  When  both  are  running  free,  with  the  wind  on  differ- 
ent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  both  are  running  free,  with  the  wind  on  the  same 
side,  the  vessel  which  is  to  the  windward  shall  keep  out  of 
the  way  of  the  vessel  which  is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the 
way  of  the  other  vessel. 

[Steam  vessels.] 

Art.  18.  Rule  I.  When  steam-vessels  are  approaching  each 
other  head  and  head,  that  is,  end  on,  or  nearly  so,  it  shall 
be  the  duty  of  each  to  pass  on  the  port  side  of  the  other; 
and  either  vessel  shall  give,  as  a  signal  of  her  intention,  one 
short  and  distinct  blast  of  her  whistle,  which  the  other  ves- 
sel shall  answer  promptly  by  a  similar  blast  of  her  whistle, 
and  thereupon  such  vessels  shall  pass  on  the  port  side  of 
each  other.  But  if  the  courses  of  such  vessels  are  so  far  on 
the  starboard  of  each  other  as  not  to  be  considered  as  meet- 
ing head  and  head,  either  vessel  shall  immediately  give  two 
short  and  distinct  blasts  of  her  whistle,  which  the  other  ves- 
sel shall  answer  promptly  by  two  similar  blasts  of  her  whis- 
tle, and  they  shall  pass  on  the  starboard  side  of  each  other. 

The  foregoing  only  applies  to  cases  where  vessels  are 
meeting  end  on  or  nearly  end  on,  in  such  a  manner  as  to 
involve  risk  of  collision ;  in  other  words,  to  cases  in  which, 
by  day,  each  vessel  sees  the  masts  of  the  other  in  a  line,  or 
nearly  in  a  line,  with  her  own,  and  by  night  to  cases  in 
which  each  vessel  is  in  such  a  position  as  to  see  both  the 
sidelights  of  the  other. 

It  does  not  apply  by  day  to  cases  in  which  a  vessel  sees 
another  ahead  crossing  her  own  course,  or  by  night  to  cases 
where  the  red  light  of  one  vessel  is  opposed  to  the  red  light 
of  the  other,  or  where  the  green  light  of  one  vessel  is  op- 
posed to  the  green  light  of  the  other,  or  where  a  red  light 
without  a  green  light  or  a  green  light  without  a  red  light, 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  401 

is  seen  ahead,  or  where  both  green  and  red  lights  are  seen 
anywhere  but  ahead. 

Rule  III.  If,  when  steam-vessels  are  approaching  each 
other,  either  vessel  fails  to  understand  the  course  or  inten- 
tion of  the  other,  from  any  cause,  the  vessel  so  in  doubt  shall 
immediately  signify  the  same  by  giving  several  short  and 
rapid  blasts,  not  less  than  four,  of  the  steam-whistle. 

Rule  V.  Whenever  a  steam-vessel  is  nearing  a  short  bend 
or  curve  in  the  channel,  where,  from  the  height  of  the  banks 
or  other  cause,  a  steam-vessel  approaching  from  the  opposite 
direction  can  not  be  seen  for  a  distance  of  half  a  mile,  such 
steam-vessel,  when  she  shall  have  arrived  within  half  a  mile 
of  such  curve  or  bend,  shall  give  a  signal  by  one  long  blast 
of  the  steam-whistle,  which  signal  shall  be  answered  by  a 
similar  blast,  given  by  any  approaching  steam-vessel  that 
may  be  within  hearing.  Should  such  signal  be  so  answered 
by  a  steam-vessel  upon  the  farther  side  of  such  bend,  then 
the  usual  signals  for  meeting  and  passing  shall  immediately 
be  given  and  answered ;  but,  if  the  first  alarm  signal  of  such 
vessel  be  not  answered,  she  is  to  consider  the  channel  clear 
and  govern  herself  accordingly. 

When  steam-vessels  are  moved  from  their  docks  or  berths, 
and  other  boats  are  liable  to  pass  from  any  direction  toward 
them,  they  shall  give  the  same  signals  as  in  the  case  of  ves- 
sels meeting  at  a  bend,  but  immediately  after  clearing  the 
berths  so  as  to  be  fully  in  sight  they  shall  be  governed  by 
the  steering  and  sailing  rules. 

Rule  VIII.  When  steam-vessels  are  running  in  the  same 
direction,  and  the  vessel  which  is  astern  shall  desire  to  pass 
on  the  right  or  starboard  hand  of  the  vessel  ahead,  she  shall 
give  one  short  blast  of  the  steam-whistle,  as  a  signal  of  such 
desire,  and  if  the  vessel  ahead  answers  with  one  blast,  she 
shall  put  her  helm  to  port ;  or  if  she  shall  desire  to  pass  on 
the  left  or  port  side  of  the  vessel  ahead,  she  shall  give  two 
short  blasts  of  the  steam-whistle  as  a  signal  of  such  desire, 
and  if  the  vessel  ahead  answers  with  two  blasts,  shall  put 

HUGHES.AD.— 26 


402  STATUTES    REGULATING    NAVIGATION.  (Appdi. 

her  helm  to  starboard ;  or  if  the  vessel  ahead  does  not  think 
it  safe  for  the  vessel  astern  to  attempt  to  pass  at  that  point, 
she  shall  immediately  signify  the  same  by  giving  several 
short  and  rapid  blasts  of  the  steam-whistle,  not  less  than 
four,  and  under  no  circumstances  shall  the  vessel  astern 
attempt  to  pass  the  vessel  ahead  until  such  time  as  they 
have  reached  a  point  where  it  can  be  safely  done,  when  said 
vessel  ahead  shall  signify  her  willingness  by  blowing  the 
proper  signals.  The  vessel  ahead  shall  in  no  case  attempt  to 
cross  the  bow  or  crowd  upon  the  course  of  the  passing  ves- 
sel. 

Rule  IX.  The  whistle  signals  provided  in  the  rules  under 
this  article,  for  steam-vessels  meeting,  passing,  or  overtak- 
ing, are  never  to  be  used  except  when  steamers  are  in  sight 
of  each  other,  and  the  course  and  position  of  each  can  be 
determined  in  the  daytime  by  a  sight  of  the  vessel  itself,  or 
by  night  by  seeing  its  signal  lights.  In  fog,  mist,  falling 
snow  or  heavy  rainstorms,  when  vessels  can  not  see  each 
other,  fog-signals  only  must  be  given. 

[Two  steam-vessels  crossing.] 

Art.  19.  When  two  steam  vessels  are  crossing,  so  as  to 
involve  risk  of  collision,  the  vessel  which  has  the  other  on 
her  own  starboard  side  shall  keep  out  of  the  way  of  the  other. 

f  Steam-vessel  shall  keep  out  of  the  way  of  sailing-vessel.] 

Art.  20.  When  a  steam-vessel  and  sailing-vessel  are  pro- 
ceeding in  such  directions  as  to  involve  risk  of  collision, 
the  steam-vessel  shall  keep  out  of  the  way  of  the  sailing-ves- 
sel. 

[Course  and  speed.] 

Art.  21.  Where,  by  any  of  these  rules,  one  of  the  two  ves- 
sels is  to  keep  out  of  the  way,  the  other  shall  keep  her  course 
and  speed. 

[Crossing   ahead.] 

Art.  22.  Every  vessel  which  is  directed  by  these  rules  to 
keep  out  of  the  way  of  another  vessel  shall,  if  the  circum- 
stances of  the  case  admit,  avoid  crossing  ahead  of  the  other. 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  403 

[Steam-vessel  shall  slacken  speed  or  stop.] 
Art.  23.  Every  steam-vessel  which  is  directed  by  these 
rules  to  keep  out  of  the  way  of  another  vessel  shall,  on  ap- 
proaching her,  if  necessary,  slacken  her  speed  or  stop  or  re- 
verse. 

[Overtaking  vessels.] 

Art.  24.  Notwithstanding  anything  contained  in  these 
rules  every  vessel,  overtaking  any  other,  shall  keep  out  of 
the  way  of  the  overtaken  vessel. 

Every  vessel  coming  up  with  another  vessel  from  any 
direction  more  than  two  points  abaft  her  beam,  that  is,  in 
such  a  position,  with  reference  to  the  vessel  which  she  is 
overtaking  that  at  night  she  would  be  unable  to  see  either 
of  that  vessel's  side-lights,  shall  be  deemed  to  be  an  overtak- 
ing vessel;  and  no  subsequent  alteration  of  the  bearing  be- 
tween the  two  vessels  shall  make  the  overtaking  vessel  a 
crossing  vessel  within  the  meaning  of  these  rules,  or  relieve 
her  of  the  duty  of  keeping  clear  of  the  overtaken  vessel 
until  she  is  finally  past  and  clear. 

As  by  day  the  overtaking  vessel  can  not  always  know  with 
certainty  whether  she  is  forward  of  or  abaft  this  direction 
from  the  other  vessel  she  should,  if  in  doubt,  assume  that  she 
is  an  overtaking  vessel  and  keep  out  of  the  way. 

[Narrow  channels.] 

Art.  25.  In  narrow  channels  every  steam-vessel  shall,  when 
it  is  safe  and  practicable,  keep  to  that  side  of  the  fair-way  or 
mid-channel  which  lies  on  the  starboard  side  of  such  vessel. 

[Rights  of  way  of  fishing  vessels.] 

Art.  26.  Sailing-vessels  under  way  shall  keep  out  of  the 
way  of  sailing-vessels  or  boats  fishing  with  nets,  or  lines 
or  trawls.  This  rule  shall  not  give  to  any  vessel  or  boat 
engaged  in  fishing  the  right  of  obstructing  a  fair-way  used 
by  vessels  other  than  fishing-vessels  or  boats. 


404  STATUTES    REGULATING    NAVIGATION.  (Appdx.   * 

[General  prudential  rule.] 

Art.  27.  In  obeying  and  construing  these  rules  due  regard 
shall  be  had  to  all  dangers  of  navigation  and  collision,  and 
to  any  special  circumstances  which  may  render  a  departure 
from  the  above  rules  necessary  in  order  to  avoid  immediate 
danger. 

Sound  signals  for  vessels  in  sight  of  one  another* 

Art.  28.  When  vessels  are  in  sight  of  one  another  a  steam- 
vessel  under  way  whose  engines  are  going  at  full  speed 
astern  shall  indicate  that  fact  by  three  short  blasts  on  the 
whistle. 

No  vessel  under  any  circumstances  to  neglect  proper 
precautions. 

Art.  29.  Nothing  in  these  rules  shall  exonerate  any  vessel, 
or  the  owner  or  master  or  crew  thereof,  from  the  consequen- 
ces of  any  neglect  to  carry  lights  or  signals,  or  of  any  neglect 
to  keep  a  proper  lookout,  or  of  the  neglect  of  any  precau- 
tion which  may  be  required  by  the  ordinary  practice  of  sea- 
men, or  by  the  special  circumstances  of  the  case. 

[Lights  on  United  States  naval  vessels  and  revenue  cutters.] 

Art.  30.  The  exhibition  of  any  light  on  board  of  a  vessel 
of  war  of  the  United  States  or  a  revenue  cutter  may  be 
suspended  whenever,  in  the  opinion  of  the  secretary  of  the 
navy,  the  commander  in  chief  of  a  squadron,  or  the  com- 
mander of  a  vessel  acting  singly,  the  special  character  of  the 
service  may  require  it. 

Distress  signals. 

Art.  31.  When  a  vessel  is  in  distress  and  requires  assist- 
ance from  other  vessels  or  from  the  shore  the  following  shall 
be  the  signals  to  be  used  or  displayed  by  her,  either  together 
or  separately,  namely: 


Appdx.)         COAST  AND  CONNECTING  INLAND  WATERS.  405 

In  the  daytime. 

A  continuous  sounding  with  any  fog-signal  apparatus,  or 

firing  a  gun. 

At  night. 

First.  Flames  on  the  vessel  as  from  a  burning  tar  barrel, 
oil  barrel  and  so  forth. 

Second.  A  continuous  sounding  with  any  fog-signal  ap- 
paratus, or  firing  a  gun. 

[Supervising  inspectors'  rules.] 

Sec.  2.  That  the  supervising  inspectors  of  steam-vessels 
and  the  supervising  inspector-general  shall  establish  such 
rules  to  be  observed  by  steam-vessels  in  passing  each  other 
and  as  to  the  lights  to  be  carried  by  ferry-boats  and  by 
barges  and  canal-boats  when  in  tow  of  steam-vessels,  not  in- 
consistent with  the  provisions  of  this  act,  as  they  from  time 
to  time  may  deem  necessary  for  safety,  which  rules,  when 
approved  by  the  secretary  of  the  treasury,  are  hereby  de- 
clared special  rules  duly  made  by  local  authority,  as  pro- 
vided for  in  article  thirty  of  chapter  eight  hundred  and  two 
of  the  laws  of  eighteen  hundred  and  ninety.  Two  printed 
copies  of  such  rules  shall  be  furnished  to  such  ferry-boats 
and  steam-vessels,  which  rules  shall  be  kept  posted  up  in 
conspicuous  places  in  such  vessels. 

[Penalty.] 
Sec.  3.  That  every  pilot,  engineer,  mate,  or  master  of  any 
steam-vessel,  and  every  master  or  mate  of  any  barge  or 
canal-boat,  who  neglects  or  refuses  to  observe  the  provi- 
sions of  this  act,  or  the  regulations  established  in  pursuance 
of  the  preceding  section,  shall  be  liable  to  a  penalty  of  fifty 
dollars,  and  for  all  damages  sustained  by  any  passenger  in 
his  person  or  baggage  by  such  neglect  or  refusal :  provided, 
that  nothing  herein  shall  relieve  any  vessel,  owner,  or  cor- 
poration from  any  liability  incurred  by  reason  of  such  neg- 
lect or  refusal. 


406  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

Sec.  4.  That  every  vessel  that  shall  be  navigated  without 
complying  with  the  provisions  of  this  act  shall  be  liable  to  a 
penalty  of  two  hundred  dollars,  one-half  to  go  to  the  in- 
former, for  which  sum  the  vessel  so  navigated  shall  be  lia- 
ble and  may  be  seized  and  proceeded  against  by  action  in 
any  district  court  of  the  United  States  having  jurisdiction 

of  the  offense. 

[Repeal  of  former  acts.] 

Sec.  5.  That  sections  forty-two  hundred  and  thirty-three 
and  forty-four  hundred  and  twelve  (with  the  regulations 
made  in  pursuance  thereof,  except  the  rules  and  regulations 
for  the  government  of  pilots  of  steamers  navigating  the 
Red  River  of  the  North  and  rivers  emptying  into  the  Gulf 
of  Mexico  and  their  tributaries,  and  except  the  rules  for  the 
Great  Lakes  and  their  connecting  and  tributary  waters  as 
far  east  as  Montreal),  and  forty-four  hundred  and  thirteen 
of  the  Revised  Statutes  of  the  United  States,  and  chapter 
two  hundred  and  two  of  the  laws  of  eighteen  hundred  and 
ninety-three,  and  sections  one  and  three  of  chapter  one  hun- 
dred and  two  of  the  laws  of  eighteen  hundred  and  ninety- 
five,  and  sections  five,  twelve,  and  thirteen  of  the  act  ap- 
proved March  third,  eighteen  hundred  and  ninety-seven,  en- 
titled "An  act  to  amend  the  laws  relating  to  navigation," 
and  all  amendments  thereto,  are  hereby  repealed  so  far  as 
the  harbors,  rivers,  and  inland  waters  aforesaid  (except  the 
Great  Lakes  and  their  connecting  and  tributary  waters  as 
far  east  as  Montreal,  and  the  Red  River  of  the  North,  and 
rivers  emptying  into  the  Gulf  of  Mexico,  and  their  tributa- 
ries) are  concerned. 

Sec.  6.  That  this  act  shall  take  effect  four  months  from 
the  date  of  its  approval. 

Approved,  June  7,  1897. 


Appdx.)  HIGH    SEAS    AND    COAST    WATERS.  407 

(3)  LINES  BETWEEN  INTERNATIONAL  AND 
INLAND  RULES. 

Lines  establishing  harbors,  rivers,  and  inland  waters  of  the 

United  States,  within  which  the  inland 

rules  are  to  apply. 

[Bearings  are  magnetic  and  given  approximately.] 

New  York  Harbor.— From  Navesink  (southerly)  Light 
House  NE.  H  E.,  easterly,  to  Scotland  Light  Vessel ;  thence 
NNE.  y2  E.  through  Gedney  Channel  Whistling  Buoy  to 
Rockaway  Point  Lite-Saving  Station. 

Baltimore  Harbor  and  Chesapeake  Bay.— From  Cape 
Henry  Light  House  NE.  by  E.  Ya  E-,  easterly,  to  Outer  En- 
trance Whistling  Buoy;  thence  N.  by  E.  Y&  E.  to  Cape 
Charles  Light  House. 

Galveston  Harbor.— From  Galveston  Bar  Whistling  Buoy 
N.  by  W.  Ya  W.  through  the  beacon  marking  the  outer  ex- 
tremity of  the  N.  jetty,  and  SW.  by  W.  y2  W.  westerly, 
through  North  Breaker  Beacon. 

Boston  Harbor.— From  Point  Allerton  NNE.  Ya  E.,  eag- 
erly, through  Point  Allerton  Beacon  to  Northeast  Grave 
Whistling  Buoy;  thence  NNE.  Ya  E.  to  Outer  Breaker  (Great 
Pig  Rocks)  Bell  Buoy;  thence  NE.  by  E.  ft  E.  to  Halfway 
Rock  Beacon;  thence  NE.  by  E.  Ya  E.  to  Eastern  Point 
Light  House. 

San  Francisco  Harbor.— From  Point  Bonita  Light  House 
SE.  Y&  S.  to  Point  Lobos. 

Philadelphia  Harbor  and  Delaware  Bay.— From  Cape 
Henlopen  Light  House  NE.  by  E.  to  South  Shoal  Whistling 
Buoy;   thence  NNE.  Ya  E.  to  Cape  May  Light  House. 

Charleston  Harbor.— From  Charleston  Light  Vessel  NW. 
y2  W.  (toward  Sullivans  Island  Range  Rear  Light)  to  the 
North  Jetty,  and  from  Charleston  Light  Vessel  SW.  Ys  W. 
to  Charleston  Whistling  Buoy;  thence  SW.  -,,  W.  to  Charles 


408  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

ton  Main  Channel  Entrance  Bell  Buoy ;  thence  W.  to  Folly 
Island. 

Savannah  Harbor  and  Calibogue  Sound. — From  Tybee 
Whistling  Buoy  NNW.  16/10  W.  through  North  Slue  Chan- 
nel Outer  Buoy  to  Braddock  Point,  Hilton  Head  Island,  and 
from  Tybee  Whistling  Buoy  W.  to  Tybee  Island. 

St.  Simon  Sound  (Brunswick  Harbor)  and  St.  Andrew 
Sound. — From  hotel  on  beach  of  St.  Simon  Island  * 5/18  mu>e 
NE.  by  E.  Ya  E.  from,  St.  Simon  Light  House,  SE.  %  E. 
to  St.  Simon  Sea  Buoy;  thence  S.  J4  E.  to  St.  Andrew's 
Sound  Sea  Buoy;  thence  W.  to  the  Shore  of  Little  Cum- 
berland Island. 

Pensacola  Harbor. — From  Pensacola  Entrance  Whistling 
Buoy  N.  Ji  W.,  a  tangent  to  the  E.  side  of  Fort  Pickens, 
to  the  shore  of  Santa  Rose  Island,  and  from  the  Whistling 
Buoy  NW.  V16  W.  to  Fort  McRee  Range  Front  Light. 

Mobile  Harbor  and  Bay. — From  Mobile  Bay  Outer  or 
Deep  Sea  Whistling  Buoy  (or  its  watch  buoy  in  summer) 
NE.  by  N.  to  the  shore  of  Mobile  Point,  and  from  the  Whis- 
tling  Buoy  NW.  by  W.  to  the  shore  of  Dauphin  Island. 

New  Orleans  Harbor  and  the  Delta  of  the  Mississippi. — 
From  South  Pass  East  Jetty  Light  House  N.  by  E.  */>  E. 
to  Pass  a  Loutre  Light  House;  thence  N.  to  Errol  Island 
and  from  South  Pass  East  Jetty  Light  House  W.  J/&  S.  to 
Southwest  Pass  Light  House ;  thence  N.  to  shore. 

San  Diego  Harbor. — From  Point  Loma  Light  House  S. 
Ji  E.  to  San  Diego  Bay  Outside  Bar  Whistling  Buoy ;  thence 
NNE.  Ji  E.  to  tower  of  Coronado  Hotel. 

Columbia  River  Entrance. — From  Cape  Disappointment 
Light  House  SE.  %  E.  to  Point  Adams  Light  House. 

Cutler  (Little  River)  Harbor,  Me. — A  line  drawn  from 
Long  Point  SW.  by  W.  y4  W.  to  Little  River  Head. 

Little  Machias  Bay,  Machias  Bay,  Englishman  Bay, 
Chandler  Bay,  Moosabec  Reach,  Pleasant  Bay,  Narraguagus 
Bay,  and  Pigeon  Hill  Bay,  Me. — A  line  drawn  from  Little 
River  Head  WSW.  %  W.  to  the  outer  side  of  Old  Man  ;  thence 


Appdx.)  HIGH    SEAS    AND    COAST    WATERS.  409 

WSW.  H  W.  to  the  outer  side  of  Double  Shot  Islands; 
thence  W.  }%  S.  to  Libby  Islands  Light  House;  thence 
WSW.  j4  W.  to  Moose  Peak  Light  House;  thence  WSW. 
yA  W.  to  Little  Pond  Head;  from  Pond  Point,  Great  Wass 
Island,  W.  by  S.  to  outer  side  of  Crumple  Island;  thence 
W.  ft  S.  to  Petit  Manan  Light  House. 

All  Harbors  on  the  Coasts  of  Maine,  New  Hampshire,  and 
Massachusetts  Between  Petit  Manan  Light  House,  Me., 
and  Cape  Ann  Light  Houses,  Mass. — A  line  drawn  from 
Petit  Manan  Light  House  SW.  $£  S.,  26^  miles,  to  Mount 
Desert  Light  House ;  thence  W.  ^  S.,  23/^  miles,  to  Matin- 
icus  Rock  Light  Houses ;  thence  WNW.  ]/%  W.,  20  miles, 
to  Monhegan  Island  Light  House;  thence  W.,  21  miles,  to 
Seguin  Island  Whistling  Buoy;  thence  W.  £4  S.,  19  miles, 
to  Old  Anthony  Whistling  Buoy,  off  Cape  Elizabeth;  thence 
SW.,  28  miles,  to  Boon  Island  Light  House;  thence  SW. 
]4>  W.,  12  miles,  to  Anderson  Ledge  Spindle,  off  Isles  of 
Shoals  Light  House ;  thence  S.  by  W.  %  W.,  19^  miles,  to 
Cape  Ann  Light  Houses,  Mass.  (Lines  heretofore  estab- 
lished for  Portland  Harbor,  and  Kittery  Harbor,  Me.,  Ports- 
mouth Harbor,  N.  H.,  Newburyport,  Ipswich  and  Annisquam 
Harbors,  Mass.,  are  hereby  canceled.) 

All  Harbors  in  Cape  Cod  Bay,  Mass. — A  line  drawn  from 
Plymouth  (Gurnet)  Light  Houses  E.,  i6j4  miles,  to  Race 
Point  Light  House. 

Nantucket  Sound,  Vineyard  Sound,  Buzzards  Bay,  Nar- 
ragansett  Bay,  Block  Island  Sound,  and  Easterly  Entrance 
to  Long  Island  Sound. — A  line  drawn  from  Chatham  Light 
Houses,  Mass.,  S.  by  E.  Y%  E.,  about  6  miles,  to  Northeast 
Slue  Channel  Whistling  Buoy  (Pollock  Rip) ;  thence  S.  by 
W.  y%  W.,  about  11  miles,  to  Great  Round  Shoal  Light  Ves- 
sel ;  thence  SSW.  y%  W.,  7^  miles,  to  Sankaty  Head  Light 
House;  from  the  westerly  end  of  Tuckernuck  Island NW. by 
W.  l/z  W., about  $l/2  miles, to  Wasque  Point, Chappaquiddick 
Island ;  from  Gay  Head  Light  House  W.  Y\  S.,  35  miles,  to 
Block  Island  (SE.)  Light  House;  thence  W.  y  S.,  15  miles, 


410  STATUTES    REGULATING    NAVIGATION.  (Appdx* 

to  Montauk  Point  Light  House,  on  the  easterly  end  of 
Long  Island,  N.  Y. 

St.  Johns  River,  Florida. — A  straight  line  from  the  outer 
end  of  the  northerly  jetty  to  the  outer  end  of  the  southerly 
jetty. 

[Additions  to  these  lines  will  be  made  from  time  to  time.] 

(4)  LAKE'  RULES.    (28  STAT.  645.) 

An  act  to  regulate  navigation  on  the  Great  Lakes  and  their 
connecting  and  tributary  waters. 

[PRELIMINARY.] 

Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled, 
that  the  following  rules  for  preventing  collisions  shall  be 
followed  in  the  navigation  of  all  public  and  private  vessels  of 
the  United  States  upon  the  Great  Lakes  and  their  connect- 
ing and  tributary  waters  as  far  east  as  Montreal. 

Steam  and  sail  vessels. 

Rule  1.  Every  steam  vessel  which  is  under  sail  and  not  un- 
der steam,  shall  be  considered  a  sail  vessel ;  and  every  steam 
vessel  which  is  under  steam,  whether  under  sail  or  not,  shall 
be  considered  a  steam  vessel.  The  word  steam  vessel  shall 
include  any  vessel  propelled  by  machinery.  A  vessel  is  un- 
der way  within  the  meaning  of  these  rules  when  she  is  not  at 
anchor  or  made  fast  to  the  shore  or  aground. 

LIGHTS. 

Rule  2.  The  lights  mentioned  in  the  following  rules  and 
no  others  shall  be  carried  in  all  weathers  from  sunset  to 
sunrise.  The  word  visible  in  these  rules  when  applied  to 
lights  shall  mean  visible  on  a  dark  night  with  a  clear  at- 
mosphere. 

Rule  3.  Except  in  the  cases  hereinafter  expressly  provided 
for,  a  steam  vessel  when  under  way  shall  carry: 


Appdx.)  LAKE    RULES.  411 

(a)  On  or  in  front  of  the  foremast,  or  if  a  vessel  without 
a  foremast,  then  in  the  forepart  of  the  vessel,  at  a  height 
above  the  hull  of  not  less  than  twenty  feet,  and  if  the  beam 
of  the  vessel  exceeds  twenty  feet,  then  at  a  height  above 
the  hull  not  less  than  such  beam,  so,  however,  that  such 
height  need  not  exceed  forty  feet,  a  bright  white  light  so 
constructed  as  to  show  an  unbroken  light  over  an  arc  of 
the  horizon  of  twenty  points  of  the  compass,  so  fixed  as  to 
throw  the  light  ten  points  on  each  side  of  the  vessel,  name- 
ly, from  right  ahead  to  two  points  abaft  the  beam  on  either 
side,  and  of  such  character  as  to  be  visible  at  a  distance  of 
at  least  five  miles. 

(b)  On  the  starboard  side,  a  green  light,  so  constructed 
as  to  throw  an  unbroken  light  over  an  arc  of  the  horizon 
of  ten  points  of  the  compass,  so  fixed  as  to  throw  the  light 
from  right  ahead  to  two  points  abaft  the  beam  on  the  star- 
board side,  and  of  such  a  character  as  to  be  visible  at  a  dis- 
tance of  at  least  two  miles. 

(c)  On  the  port  side,  a  red  light,  so  constructed  as  to 
show  an  unbroken  light  over  an  arc  of  the  horizon  of  ten 
points  of  the  compass,  so  fixed  as  to  throw  the  light  from 
right  ahead  to  two  points  abaft  the  beam  on  the  port  side, 
and  of  such  a  character  as  to  be  visible  at  a  distance  of  at 
least  two  miles. 

(d)  The  said  green  and  red  lights  shall  be  fitted  with  in- 
board screens  projecting  at  least  three  feet  forward  from  the 
light,  so  as  to  prevent  these  lights  from  being  seen  across 
the  bow. 

(e)  A  steamer  of  over  one  hundred  and  fifty  feet  register 
length  shall  also  carry  when  under  way  an  additional  bright 
light  similar  in  construction  to  that  mentioned  in  subdivi- 
sion (a),  so  fixed  as  to  throw  the  light  all  around  the  hori- 
zon and  of  such  character  as  to  be  visible  at  a  distance  of 
at  least  three  miles.  Such  additional  light  shall  be  placed 
in  line  with  the  keel  at  least  fifteen  feet  higher  from  the 

and  more  than  seventy-five  feet  abaft  the  light  men- 
tioned in  subdivision  (a). 


412  STATUTES    REGULATING    NAVIGATION.  (Appdx. 


Vessels    towing. 

Rule  4.  A  steam  vessel  having  a  tow  other  than  a  raft 
shall  in  addition  to  the  forward  bright  light  mentioned  in 
subdivision  (a)  of  rule  three  carry  in  a  vertical  line  not  less 
than  six  feet  above  or  below  that  light  a  second  bright  light 
of  the  same  construction  and  character  and  fixed  and  car- 
ried in  the  same  manner  as  the  forward  bright  light  men- 
tioned in  said  subdivision  (a)  of  rule  three.  Such  steamer 
shall  also  carry  a  small  bright  light  abaft  the  funnel  or  after 
mast  for  the  tow  to  steer  by,  but  such  light  shall  not  be 
visible  forward  of  the  beam. 

Rule  5.  A  steam  vessel  having  a  raft  in  tow  shall,  instead 
of  the  forward  lights  mentioned  in  rule  four,  carry  on  or  in 
front  of  the  foremast,  or  if  a  vessel  without  a  foremast  then 
in  the  forepart  of  the  vessel,  at  a  height  above  the  hull  of 
not  less  than  twenty  feet,  and  if  the  beam  of  the  vessel  ex- 
ceeds twenty  feet,  then  at  a  height  above  the  hull  not  less 
than  such  beam,  so  however  that  such  height  need  not  exceed 
forty  feet,  two  bright  lights  in  a  horizontal  line  athwart- 
ships  and  not  less  than  eight  feet  apart,  each  so  fixed  as  to 
throw  the  light  all  around  the  horizon  and  of  such  character 
as  to  be  visible  at  a  distance  of  at  least  five  miles.  Such 
steamer  shall  also  carry  the  small  bright  steering  light  aft, 
of  the  character  and  fixed  as  required  in  rule  four. 

[Lights    for   vessels   towed.] 

Rule  6.  A  sailing  vessel  under  way  and  any  vessel  being 
towed  shall  carry  the  side  lights  mentioned  in  rule  three. 

A  vessel  in  tow  shall  also  carry  a  small  bright  light  aft, 
but  such  light  shall  not  be  visible  forward  of  the  beam. 

[Lights   for   tugs   and    for  ferryboats,  rafts,    canal   boats,   and 
boats  on  the  St.  Lawrence.] 

Rule  7.  The  lights  for  tugs  under  thirty  tons  register  whose 
principal  business  is  harbor  towing,  and  for  boats  navi- 
gating only  on  the  river  Saint  Lawrence,  also  ferryboats, 


Appdx.)  LAKE    RULES.  413 

rafts,  and  canal  boats,  shall  be  regulated  by  rules  which  have 
been  or  may  hereafter  be  prescribed  by  the  board  of  super- 
vising inspectors  of  steam  vessels. 

[Lights  for  small  vessels.] 

Rule  8.  Whenever,  as  in  the  case  of  small  vessels  under 
way  during  bad  weather,  the  green  and  red  side  lights 
can  not  be  fixed,  these  lights  shall  be  kept  at  hand  lighted 
and  ready  for  use,  and  shall,  on  the  approach  of  or  to  other 
vessels,  be  exhibited  on  their  respective  sides  in  sufficient  time 
to  prevent  collision,  in  such  manner  as  to  make  them  most 
visible,  and  so  that  the  green  light  shall  not  be  seen  on 
the  port  side,  nor  the  red  light  on  the  starboard  side,  nor, 
if  practicable,  more  than  two  points  abaft  the  beam  on  their 
respective  sides.  To  make  the  use  of  these  portable  lights 
more  certain  and  easy,  they  shall  each  be  painted  outside 
with  the  color  of  the  light  they  respectively  contain,  and 
shall  be  provided  with  suitable  screens. 

[Lights  for  vessels  at  anchor.] 

Rule  9.  A  vessel  under  one  hundred  and  fifty  feet  register 
length,  when  at  anchor,  shall  carry  forward,  where  it  can 
best  be  seen,  but  at  a  height  not  exceeding  twenty  feet 
above  the  hull,  a  white  light  in  a  lantern  constructed  so  as 
to  show  a  clear,  uniform,  and  unbroken  light,  visible  all 
around  the  horizon,  at  a  distance  of  at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upward  in  reg- 
ister length,  when  at  anchor,  shall  carry  in  the  forward  part 
if  the  vessel,  at  a  height  of  not  less  than  twenty  and  not 
exceeding  forty  feet  above  the  hull,  one  such  light,  and  at  or 
near  the  stern  of  the  vessel,  and  at  such  a  height  that  it 
shall  be  not  less  than  fifteen  feet  lower  than  the  forward 
light,  another  such  light. 

[Lights  for  produce  boats  and  craft  on  bays,  harbors, 
and  rivers.] 

Rule  10.  Produce  boats,  canal  boats,  fishing  boats,  rafts, 
or  other  water  craft  navigating  any  bay,  harbor,  or  river 


414  STATUTES    REGULATING    NAVIGATION.  (Appdk. 

by  hand  power,  horse  power,  sail,  or  by  the  current  of  the 
river,  or  which  shall  be  anchored  or  moored  in  or  near  the 
channel  or  fairway  of  any  bay,  harbor,  or  river,  and  not 
otherwise  provided  for  in  these  rules,  shall  carry  one  or 
more  good  white  lights,  which  shall  be  placed  in  such  man- 
ner as  shall  be  prescribed  by  the  board  of  supervising  in- 
spectors of  steam  vessels. 

[Lights   for  open  boats.] 

Rule  ii.  Open  boats  shall  not  be  obliged  to  carry  the  side 
lights  required  for  other  vessels,  but  shall,  if  they  do  not 
carry  such  lights,  carry  a  lantern  having  a  green  slide  on  one 
side  and  a  red  slide  on  the  other  side ;  and  on  the  approach 
of  or  to  other  vessels,  such  lantern  shall  be  exhibited  in 
sufficient  time  to  prevent  collision,  and  in  such  a  manner  that 
the  green  light  shall  not  be  seen  on  the  port  side,  nor  the 
red  light  on  the  starboard  side.  Open  boats,  when  at  an- 
chor or  stationary,  shall  exhibit  a  bright  white  light.  They 
shall  not,  however,  be  prevented  from  using  a  flare-up  in 
addition  if  considered  expedient. 

[Lighted  torch.] 

Rule  12.  Sailing  vessels  shall  at  all  times,  on  the  approach 
of  any  steamer  during  the  nighttime,  show  a  lighted  torch 
upon  that  point  or  quarter  to  which  such  steamer  shall  be 
approaching. 

[Lights  on  vessels  of  war,  etc.l 

Rule  13.  The  exhibition  of  any  light  on  board  of  a  vessel 
of  war  or  revenue  cutter  of  the  United  States  may  be  sus- 
pended whenever,  in  the  opinion  of  the  secretary  of  the  navy, 
the  commander  in  chief  of  a  squadron,  or  the  commander 
of  a  vessel  acting  singly,  the  special  character  of  the  service 
may  require  it. 

FOG  SIGNALS. 

Rule  14.  A  steam  vessel  shall  be  provided  with  an  efficient 
whistle,  sounded  by  steam  or  by  some  substitute  for  steam, 


Appdx.)  LAKE    RULES.  415 

placed  before  the  funnel  not  less  than  eight  feet  from  the 
deck,  or  in  such  other  place  as  the  local  inspectors  of  steam 
vessels  shall  determine,  and  of  such  character  as  to  be  heard 
in  ordinary  weather  at  a  distance  of  at  least  two  miles,  and 
with  an  efficient  bell,  and  it  is  hereby  made  the  duty  of  the 
United  States  local  inspectors  of  steam  vessels  when  in- 
specting the  same  to  require  each  steamer  to  be  furnished 
with  such  whistle  and  bell.  A  sailing  vessel  shall  be  pro- 
vided with  an  efficient  fog  horn  and  with  an  efficient  bell. 

Whenever  there  is  thick  weather  by  reason  of  fog,  mist, 
falling  snow,  heavy  rainstorms,  or  other  causes,  whether  by 
day  or  by  night,  fog  signals  shall  be  used  as  follows : 

(a)  A  steam  vessel  under  way,  excepting  only  a  steam  ves- 
sel with  raft  in  tow,  shall  sound  at  intervals  of  not  more 
than  one  minute  three  distinct  blasts  of  her  whistle. 

(b)  Every  vessel  in  tow  of  another  vessel  f.all,  at  inter- 
vals of  one  minute,  sound  four  bells  on  a  good  and  efficient 
and  properly  placed  bell  as  follows:  By  striking  the  bell 
twice  in  quick  succession,  followed  by  a  little  longer  in- 
terval, and  then  again  striking  twice  in  quick  succession  (in 
the  manner  in  which  four  bells  is  struck  in  indicating  time.) 

(c)  A  steamer  with  a  raft  in  tow  shall  sound  at  intervals 
of  not  more  than  one  minute  a  screeching  or  Modoc  whistle 
for  from  three  to  five  seconds. 

(d)  A  sailing  vessel  under  way  and  not  in  tow  shall  sound 
at  intervals  of  not  more  than  one  minute — 

If  on  the  starboard  tack  with  wind  forward  of  abeam,  one 
blast  of  her  fog  horn; 

If  on  the  port  tack  with  wind  forward  of  the  beam,  two 
blasts  of  her  fog  horn ; 

If  she  has  the  wind  abaft  the  beam  on  either  side,  three 
blasts  of  her  fog  horn. 

(e)  Any  vessel  at  anchor  and  any  vessel  aground  in  or 
near  a  channel  or  fairway  shall  at  intervals  of  not  more  than 
two  minutes  ring  the  bell  rapidly  for  three  to  five  seconds. 

(i)  Vessels  of  less  than  ten  tons  registered  tonnage,  not 


416  STATUTES    REGULATING    NAVIGATION.  (AppdXs 

being  steam  vessels,  shall  not  be  obliged  to  give  the  above- 
mentioned  signals,  but  if  they  do  not  they  shall  make  some 
other  efficient  sound  signal  at  intervals  of  not  more  than  one 
minute. 

(g)  Produce  boats,  fishing  boats,  rafts,  or  other  water 
craft  navigating  by  hand  power  or  by  the  current  of  the 
river,  or  anchored  or  moored  in  or  near  the  channel  or  fair- 
way and  not  in  any  port,  and  not  otherwise  provided  for  in 
these  rules,  shall  sound  a  fog  horn,  or  equivalent  signal,  at 
intervals  of  not  more  than  one  minute. 

[Moderate  speed  in  thick  weather.] 

Rule  15.  Every  vessel  shall,  in  thick  weather,  by  reason 
of  fog,  mist,  falling  snow,  heavy  rain  storms,  or  other  causes, 
go  at  moderate  speed.  A  steam  vessel  hearing,  apparently 
not  more  than  four  points  from  right  ahead,  the  fog  signal 
of  another  vessel  shall  at  once  reduce  her  speed  to  bare 
steerageway,  and  navigate  with  caution  until  the  vessels 
shall  have  passed  each  other. 

STEERING  AND  SAILING  RULES. 

Sailing  vessels. 

Rule  16.  When  two  sailing  vessels  are  approaching  one 
another  so  as  to  involve  risk  of  collision  one  of  them  shall 
keep  out  of  the  way  of  the  other,  as  follows,  namely: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of:  a  vessel  which  is  closehauled. 

(b)  A  vessel  which  is  closehauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  closehauled  on  the 
starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  differ- 
ent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  they  are  running  free,  with  the  wind  on  the, 
same  side,  the  vessel  which  is  to  windward  shall  keep  out  of 
the  way  of  the  vessel  which  is  to  leeward. 


Appdx.)  LAKE    RULES.  417 

Steam    vessels. 

Rule  17.  When  two  steam  vessels  are  meeting  end  on,  or 
nearly  end  on,  so  as  to  involve  risk  of  collision  each  shall 
alter  her  course  to  starboard,  so  that  each  shall  pass  on  the 
port  side  of  the  other. 

Rule  18.  When  two  steam  vessels  are  crossing  so  as  to 
involve  risk  of  collision  the  vessel  which  has  the  other  on 
her  own  starboard  side  shall  keep  out  of  the  way  of  the 
other. 

Rule  19.  When  a  steam  vessel  and  a  sailing  vessel  are 
proceeding  in  such  directions  as  to  involve  risk  of  collision 
the  steam  vessel  shall  keep  out  of  the  way  of  the  sailing  ves- 
sel. 

Rule  20.  Where,  by  any  of  the  rules  herein  prescribed, 
one  of  two  vessels  shall  keep  out  of  the  way,  the  other  shall 
keep  her  course  and  speed. 

Rule  21.  Every  steam  vessel  which  is  directed  by  these 
rules  to  keep  out  of  the  way  of  another  vessel  shall,  on  ap- 
proaching her,  if  necessary,  slacken  her  speed  or  stop  or 
reverse. 

Rule  22.  Notwithstanding  anything  contained  in  these 
rules  every  vessel  overtaking  any  other  shall  keep  out  of 
the   way   of  the   overtaken  vessel. 

Rule  23.  In  all  weathers  every  steam  vessel  under  way  in 
taking  any  course  authorized  or  required  by  these  rules  shall 
indicate  that  course  by  the  following  signals  on  her  whis- 
tle, to  be  accompanied  whenever  required  by  corresponding 
alteration  of  her  helm ;  and  every  steam  vessel  receiving  a 
signal  from  another  shall  promptly  respond  with  the  same 
signal  or,  as  provided  in  rule  twenty-six: 

One  blast  to  mean,  "I  am  directing  my  course  to  star- 
board." 

Two  blasts  to  mean,  "I  am  directing  my  course  to  port." 
But  the  giving  or  answering  signals  by  a  vessel  required  to 

HUGHES.AD.— 27 


4  IS  STATUTES    REGULATING    NAVIGATION.  (Appdx.* 

keep  her  course  shall  not  vary  the  duties  and  obligations  of 
the  respective  vessels. 

[Steamers  in  narrow  channels.] 

Rule  24.  That  in  all  narrow  channels  where  there  is  a 
current,  and  in  the  rivers  Saint  Mary,  Saint  Clair,  Detroit, 
Niagara,  and  Saint  Lawrence,  when  two  steamers  are  meet- 
ing, the  descending  steamer  shall  have  the  right  of  way,  and 
shall,  before  the  vessels  shall  have  arrived  within  the  dis- 
tance of  one-half  mile  of  each  other,  give  the  signal  neces- 
sary to  indicate  which  side  she  elects  to  take. 

Rule  25.  In  all  channels  less  than  five  hundred  feet  in 
width,  no  steam  vessel  shall  pass  another  going  in  the  same 
direction  unless  the  steam  vessel  ahead  be  disabled  or  signify 
her  willingness  that  the  steam  vessel  astern  shall  pass,  when 
the  steam  vessel  astern  may  pass,  subject,  however,  to  the 
other  rules  applicable  to  such  a  situation.  And  when  steam 
vessels  proceeding  in  opposite  directions  are  about  to  meet 
in  such  channels,  both  such  vessels  shall  be  slowed  down  to 
a  moderate  speed,  according  to  the  circumstances. 

[Direct  signals.] 

Rule  26.  If  the  pilot  of  a  steam  vessel  to  which  a  passing 
signal  is  sounded  deems  it  unsafe  to  accept  and  assent  to 
said  signal,  he  shall  not  sound  a  cross  signal ;  but  in  that 
case,  and  in  every  case  where  the  pilot  of  one  steamer  fails 
to  understand  the  course  or  intention  of  an  approaching 
steamer,  whether  from  signals  being  given  or  answered  er- 
roneously, or  from  other  causes,  the  pilot  of  such  steamer 
so  receiving  the  first  passing  signal,  or  the  pilot  so  in  doubt, 
shall  sound  several  short  and  rapid  blasts  of  the  whistle ; 
and  if  the  vessels  shall  have  approached  within  half  a  mile 
of  each  other  both  shall  reduce  their  speed  to  bare  steerage- 
way,  and,  if  necessary,  stop  and  reverse. 

[Immediate    danger.] 

Rule  27.  In  obeying  and  construing  these  rules  due  re- 
gard shall  be  had  to  all  dangers  of  navigation  and  collision 


Appdx.)  LAKE    RULES.  419 

and  to  any  special  circumstances  which  may  render  a  de- 
parture from  the  above  rules  necessary  in  order  to  avoid 
immediate  danger. 

[Neglect  of  precautions,  etc] 

Rule  28.  Nothing  in  these  rules  shall  exonerate  any  ves- 
sel, or  the  owner  or  master  or  crew  thereof,  from  the  conse- 
quences of  any  neglect  to  carry  lights  or  signals,  or  of  any 
neglect  to  keep  a  proper  lookout,  or  of  a  neglect  of  any 
precaution  which  may  be  required  by  the  ordinary  practice 
of  seamen,  or  by  the  special  circumstances  of  the  case. 

[Fine.] 

Sec.  2.  That  a  fine,  not  exceeding  two  hundred  dollars, 
may  be  imposed  for  the  violation  of  any  of  the  provisions 
of  this  act.  The  vessel  shall  be  liable  for  the  said  penalty, 
and  may  be  seized  and  proceeded  against,  by  way  of  libel, 
in  the  district  court  of  the  United  States  for  any  district 
within  which  such  vessel  may  be  found. 

[Authority  to  make  regulations.] 

Sec.  3.  That  the  secretary  of  the  treasury  of  the  United 
States  shall  have  authority  to  establish  all  necessary  reg- 
ulations, not  inconsistent  with  the  provisions  of  this  act, 
required  to  carry  the  same  into  effect. 

The  board  of  supervising  inspectors  of  the  United  States 
shall  have  authority  to  establish  such  regulations  to  be  ob- 
served by  all  steam  vessels  in  passing  each  other,  not  incon- 
sistent with  the  provisions  of  this  act,  as  they  shall  from  time 
to  time  deem  necessary;  and  all  regulations  adopted  by 
the  said  board  of  supervising  inspectors  under  the  authority 
of  this  act,  when  approved  by  the  secretary  of  the  treasury, 
shall  have  the  force  of  law.  Two  printed  copies  of  any  such 
regulations  for  passing,  signed  by  them,  shall  be  furnished  to 
each  steam  vessel,  and  shall  at  all  times  be  kept  posted  up  in 
conspicuous  places  on  board. 


420  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

[Repeal   of  inconsistent  rules.] 

Sec.  4.  That  all  laws  or  parts  of  laws,  so  far  as  applicable 
to  the  navigation  of  the  Great  Lakes  and  their  connecting 
and  tributary  waters  as  far  east  as  Montreal,  inconsistent 
with  the  foregoing  rules  are  hereby  repealed. 

Sec.  5.  That  this  act  shall  take  effect  on  and  after  March 
first,  eighteen  hundred  and  ninety-five. 

Approved,  February  8,  1895. 

(5)  MISSISSIPPI  VALLEY  RULES.    (Rev.  St.  §  4233.) 

The  following  rules  for  preventing  collisions  on  the  water 
shall  be  followed  in  the  navigation  of  vessels  of  the  navy 
and  of  the  mercantile  marine  of  the  United  States: 

STEAM  AND  SAIL  VESSELS. 

Rule  one.  Every  steam-vessel  which  is  under  sail,  and 
not  under  steam,  shall  be  considered  a  sail-vessel;  and 
every  steam-vessel  which  is  under  steam,  whether  under 
sail  or  not,  shall  be  considered  a  steam-vessel. 

LIGHTS. 

Rule  two.  The  lights  mentioned  in  the  following  rules, 
and  no  others,  shall  be  carried  in  all  weathers,  between  sun- 
set and  sunrise. 

Rule  three.  All  ocean-going  steamers,  and  steamers  car- 
rying sail,  shall,  when  under  way,  carry — 

(A)  At  the  foremast  head,  a  bright  white  light,  of  such  a 
character  as  to  be  visible  on  a  dark  night,  with  a  clear 
atmosphere,  at  a  distance  of  at  least  five  miles,  and  so  con- 
structed as  to  show  a  uniform  and  unbroken  light  over  an 
arc  of  the  horizon  of  twenty  points  of  the  compass,  and  so 
fixed  as  to  throw  the  k'ght  ten  points  on  each  side  of  the  ves- 
sel, namely,  from  rignt  ahead  to  two  points  abaft  the  beam 
on  either  side. 


Appdx.)  MISSISSIPPI    VALLEY    RULES.  421 

(B)  On  the  starboard  side,  a  green  light,  of  such  a  char- 
acter as  to  be  visible  on  a  dark  night,  with  a  clear  atmos- 
phere, at  a  distance  of  at  least  two  miles,  and  so  constructed 
as  to  show  a  uniform  and  unbroken  light  over  an  arc  of  the 
horizon  of  ten  points  of  the  compass,  and  so  fixed  as  to 
throw  the  light  from  right  ahead  to  two  points  abaft  the 
beam  on  the  starboard  side. 

(C)  On  the  port  side,  a  red  light,  of  such  a  character  as 
to  be  visible  on  a  dark  night,  with  a  clear  atmosphere,  at  a 
distance  of  at  least  two  miles,  and  so  constructed  as  to 
show  a  uniform  and  unbroken  light  over  an  arc  of  the  ho- 
rizon of  ten  points  of  the  compass,  and  so  fixed  as  to  throw 
the  light  from  right  ahead  to  two  points  abaft  the  beam  on 
the  port  side. 

The  green  and  red  lights  shall  be  fitted  with  inboard 
screens,  projecting  at  least  three  feet  forward  from  the 
lights,  so  as  to  prevent  them  from  being  seen  across  the 
bow. 

Rule  four.  Steam-vessels,  when  towing  other  vessels,  shall 
carry  two  bright  white  mast-head  lights  vertically,  in  addi- 
tion to  their  side  lights,  so  as  to  distinguish  them  from  other 
steam-vessels.  Each  of  these  mast-head  lights  shall  be  of 
the  same  character  and  construction  as  the  mast-head  lights 
prescribed  by  rule  three. 

Rule  five.  All  steam-vessels,  other  than  ocean-going  steam- 
ers and  steamers  carrying  sail,  shall,  when  under  way,  car- 
ry on  the  starboard  and  port  side-lights  of  the  same  char- 
acter and  construction  and  in  the  same  position  as  are  pre- 
scribed for  side-lights  by  rule  three,  except  in  the  case  pro- 
vided in  rule  six. 

Rule  six.  River-steamers  navigating  waters  flowing  into 
the  Gulf  of  Mexico,  and  their  tributaries,  shall  carry  the  fol- 
lowing lights,  namely:  One  red  light  on  the  outboard  side 
of  the  port  smoke-pipe,  and  one  green  light  on  the  outboard 
side  of  the  starboard  smoke-pipe.  Such  lights  shall  show 
both  forward  and  abeam  on  their  respective  sides. 


422  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

Rule  seven.  (As  amended  March  3,  1893,  27  Stat.  557.) 
All  coasting  steam-vessels,  and  steam-vessels  other  than 
ferry-boats  and  vessels  otherwise  expressly  provided  for, 
navigating  the  bays,  lakes,  rivers,  or  other  inland  waters  of 
the  United  States,  except  those  mentioned  in  rule  six,  shall 
carry  the  red  and  green  lights,  as  prescribed  for  ocean-go- 
ing steamers;  and,  in  addition  thereto,  a  central  range  of 
two  white  lights ;  the  after-light  being  carried  at  an  eleva- 
tion of  at  least  fifteen  feet  above  the  light  at  the  head  of  the 
vessel.  The  head  light  shall  be  so  constructed  as  to  show 
a  good  light  through  twenty  points  of  the  compass,  namely ; 
from  right  ahead  to  two  points  abaft  the  beam  on  either  side 
of  the  vessel;  and  the  after-light  so  as  to  show  all  around 
the  horizon.  The  lights  for  ferry-boats,  barges  and  canal 
boats  when  in  tow  of  steam-vessels  shall  be  regulated  by 
such  rules  as  the  board  of  supervising  inspectors  of  steam- 
vessels  shall  prescribe. 

Rule  eight.  Sail-vessels,  under  way  or  being  towed,  shall 
carry  the  same  lights  as  steam-vessels  under  way,  with  the 
exception  of  the  white  mast-head  lights,  which  they  shall 
never  carry. 

Rule  nine.  Whenever,  as  in  case  of  small  vessels  during 
bad  weather,  the  green  and  red  lights  cannot  be  fixed,  these 
lights  shall  be  kept  on  deck,  on  their  respective  sides  of  the 
vessel,  ready  for  instant  exhibition,  and  shall,  on  the  ap- 
proach of  or  to  other  vessels,  be  exhibited  on  their  re- 
spective sides  in  sufficient  time  to  prevent  collision,  in  such 
manner  as  to  make  them  most  visible,  and  so  that  the  green 
light  shall  not  be  seen  on  the  port  side,  nor  the  red  light 
on  the  starboard  side.  To  make  the  use  of  these  portable 
lights  more  certain  and  easy,  they  shall  each  be  painted  out- 
side with  the  color  of  the  light  they  respectively  contain,  and 
shall  be  provided  with  suitable  screens. 

Rule  ten.  All  vessels,  whether  steam-vessels  or  sail-ves- 
sels, when  at  anchor  in  roadsteads  or  fairways,  shall,  be- 
tween sunset  and  sunrise,  exhibit  where  it  can  best  be  seen, 


Appdx.)  MISSISSIPPI    VALLEY    RULES.  423 

but  at  a  height  not  exceeding  twenty  feet  above  the  hull, 
a  white  light  in  a  globular  lantern  of  eight  inches  in  diame- 
ter, and  so  constructed  as  to  show  a  clear,  uniform,  and  un- 
broken light,  visible  all  around  the  horizon,  and  at  a  distance 
of  at  least  one  mile. 

Rule  eleven.  (As  amended  March  3,  1897,  29  Stat.  689.) 
Sailing  pilot-vessels  shall  not  carry  the  lights  required  for 
other  sailing-vessels,  but  shall  carry  a  white  light  at  the 
mast-head,  visible  all  around  the  horizon,  and  shall  also  ex- 
hibit a  flare-up  light  every  fifteen  minutes. 

Steam  pilot  boats  shall,  in  addition  to  the  mast-head  light 
and  green  and  red  side  lights  required  for  ocean  steam  ves- 
sels, carry  a  red  light  hung  vertically  from  three  to  five  feet 
above  the  foremast  headlight,  for  the  purpose  of  distin- 
guishing such  steam  pilot  boat  from  other  steam  vessels. 

Rule  twelve.  Coal-boats,  trading-boats,  produce-boats, 
canal-boats,  oyster-boats,  fishing-boats,  rafts,  or  other  wa- 
ter-craft, navigating  any  bay,  harbor,  or  river,  by  hand- 
power,  horse-power,  sail,  or  by  the  current  of  the  river,  or 
which  shall  be  anchored  or  moored  in  or  near  the  channel 
or  fairway  of  any  bay,  harbor,  or  river,  shall  carry  one  or 
more  good  white  lights,  which  shall  be  placed  in  such  man- 
ner as  shall  be  prescribed  by  the  board  of  supervising  in- 
spectors of  steam-vessels  (but  this  rule  shall  be  so  con- 
strued as  not  to  require  row-boats  and  skiffs  on  the  river  St. 
Lawrence  to  carry  lights). 

Rule  thirteen.  Open  boats  shall  not  be  required  to  carry 
the  side-lights  required  for  other  vessels,  but  shall,  if  they 
do  not  carry  such  lights,  carry  a  lantern  having  a  green 
slide  on  one  side  and  a  red  slide  on  the  other  side ;  and,  on 
the  approach  of  or  to  other  vessels,  such  lantern  shall  be 
exhibited  in  sufficient  time  to  prevent  collision,  and  in  such 
a  manner  that  the  green  light  shall  not  be  seen  on  the  port 
side,  nor  the  red  light  on  the  starboard  side.  Open  boats, 
when  at  anchor  or  stationary,  shall  exhibit  a  bright  white 


424  STATUTES    REGULATING    NAVIGATION.  (Appdx.  - 

light.     They  shall  not,  however,  be  prevented  from  using 
a  flare-up,  in  addition,  if  considered  expedient. 

Rule  fourteen.  (As  amended  March  3,  1897,  29  Stat.  690.) 
The  exhibition  of  any  light  on  board  of  a  vessel  of  war  of  the 
United  States  may  be  suspended  whenever,  in  the  opinion  of 
the  secretary  of  the  navy,  the  commander  in  chief  of  a  squad- 
ron, or  the  commander  of  a  vessel  acting  singly,  the  special 
character  of  the  service  may  require  it.  The  exhibition  of 
any  light  on  board  of  a  revenue  cutter  of  the  United  States 
may  be  suspended  whenever,  in  the  opinion  of  the  comman- 
der of  the  vessel,  the  special  character  of  the  service  may 

require  it. 

FOG    SIGNALS. 

Rule  fifteen.  (As  amended  March  3,  1897,  29  Stat.  690.) 
Whenever  there  is  a  fog,  or  thick  weather,  whether  by  day 
or  night,  fog  signals  shall  be  used  as  follows: 

(a)  Steam  vessels  under  way  shall  sound  a  steam  whis- 
tle placed  before  the  funnel,  not  less  than  eight  feet  from 
the  deck,  at  intervals  of  not  more  than  one  minute.  Steam 
vessels,  when  towing,  shall  sound  three  blasts  of  quick  suc- 
cession repeated  at  intervals  of  not  more  than  one  minute. 

(b)  Sail  vessels  under  way  shall  sound  a  fog  horn  at  in- 
tervals of  not  more  than  one  minute. 

(c)  Steam  vessels  and  sail  vessels,  when  not  under  way, 
shall  sound  a  bell  at  intervals  of  not  more  than  two  minutes. 

(d)  Coal-boats,  trading-boats,  produce-boats,  canal-boats, 
oyster-boats,  fishing-boats,  rafts,  or  other  water-craft,  nav- 
igating any  bay,  harbor,  or  river,  by  hand-power,  horse- 
power, sail,  or  by  the  current  of  the  river,  or  anchored  or 
moored  in  or  near  the  channel  or  fairway  of  any  bay,  har- 
bor, or  river,  and  not  in  any  port,  shall  sound  a  fog-horn,  or 
equivalent  signal,  which  shall  make  a  sound  equal  to  a 
steam-whistle,  at  intervals  of  not  more  than  two  minutes. 


Appdx.)  MISSISSIPPI    VALLEY    RULES.  425 

STEERING  AND   SAILING  RULES. 

Rule  sixteen.  (As  amended  March  3,  1897,  29  Stat.  690.) 
Risk  of  collision  can,  when  circumstances  permit,  be  ascer- 
tained by  carefully  watching  the  compass  bearing  of  an  ap- 
proaching vessel.  If  the  bearing  does  not  appreciably 
change  such  risk  should  be  deemed  to  exist. 

Rule  seventeen.  (As  amended  March  3,  1897,  29  Stat. 
690.)  When  two  sailing  vessels  are  approaching  one  anoth- 
er, so  as  to  involve  risk  of  collision,  one  of  them  shall  keep 
out  of  the  way  of  the  other,  as  follows,  namely : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled. 

(b)  A  vessel  which  :s  close-hauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  close-hauled  on  the 
starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  differ- 
ent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  both  vessels  are  running  free,  with  the  wind 
on  the  same  side,  the  vessel  which  is  to  the  windward  shall 
keep  out  of  the  way  of  the  vessel  which  is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the 
way  of  the  other  vessel. 

Rule  eighteen.  If  two  vessels  under  steam  are  meeting 
end  on,  or  nearly  end  on,  so  as  to  involve  risk  of  collision, 
the  helms  of  both  shall  be  put  to  port,  so  that  each  may  pass 
on  the  port  side  of  the  other. 

Rule  nineteen.  If  two  vessels  under  steam  are  crossing 
so  as  to  involve  risk  of  collision,  the  vessel  which  has  the 
other  on  her  own  starboard  side  shall  keep  out  of  the  way  of 
the  other. 

Rule  twenty.  If  two  vessels,  one  of  which  is  a  sail-vessel 
and  the  other  a  steam-vessel,  are  proceeding  in  such  direc- 
tions as  to  involve  risk  of  collision,  the  steam-vessel  shall 
keep  uuL  ui  the  way  of  the  sail-ve 


42G  STATUTES    REGULATING    NAVIGATION.  (Appdx. 

Rule  twenty-one.  Every  steam-vessel,  when  approaching 
another  vessel,  so  as  to  involve  risk  of  collision,  shall  slacken 
her  speed,  or,  if  necessary,  stop  and  reverse;  and  every 
steam-vessel  shall,  when  in  a  fog,  go  at  a  moderate  speed. 

Rule  twenty-two.  Every  vessel  overtaking  any  other  ves- 
sel shall  keep  out  of  the  way  of  the  last-mentioned  vessel. 

Rule  twenty-three.  Where,  by  rules  seventeen,  nineteen, 
twenty,  and  twenty-two,  one  of  two  vessels  shall  keep  out 
of  the  way,  the  other  shall  keep  her  course,  subject  to  the 
qualifications  of  rule  twenty-four. 

Rule  twenty-four.  In  construing  and  obeying  these  rules, 
due  regard  must  be  had  to  all  dangers  of  navigation,  and 
to  any  special  circumstances  which  may  exist  in  any  par- 
ticular case  rendering  a  departure  from  them  necessary  in 
order  to  avoid   immediate   danger. 

Rule  twenty-five.  (As  amended  March  3,  1897,  29  Stat. 
690.)  A  sail  vessel  which  is  being  overtaken  by  another  ves- 
sel during  the  night  shall  show  from  her  stern  to  such  last- 
mentioned  vessel  a  torch  or  flare-up  light. 

Rule  twenty-six.  Nothing  in  these  rules  shall  exonerate 
any  ship,  or  the  owner,  or  master,  or  crew  thereof,  from  the 
consequences  of  any  neglect  to  carry  lights  or  signals,  or  of 
any  neglect  to  keep  a  proper  lookout,  or  of  the  neglect  of 
any  precaution  which  may  be  required  by  the  ordinary  prac- 
tice of  seamen  or  by  the  special  circumstances  of  the  case. 

(6)  ACT  MARCH  3,  1899.     (30  STAT.  1152.) 

Obstructions   by  anchoring   vessels. 

Sec.  15.  That  it  shall  not  be  lawful  to  tie  up  or  anchor 
vessels  or  other  craft  in  navigable  channels  in  such  a  man- 
ner as  to  prevent  or  obstruct  the  passage  of  other  vessels 
or  craft ;  or  to  voluntarily  or  carelessly  sink,  or  permit  or 
cause  to  be  sunk,  vessels  or  other  craft  in  navigable  chan- 
nels ;  or  to  float  loose  timber  and  logs,  or  to  float  what  is 
known  as  sack  rafts  of  timber  and  logs  in  streams  or  chan- 


Appdx.)       ACT  OF  1899,  AS  TO  OBSTRUCTING  CHANNELS.  427 

nels  actually  navigated  by  steamboats  in  such  manner  as  to 
obstruct,  impede,  or  endanger  navigation.  And  whenever 
a  vessel,  raft,  or  other  craft  is  wrecked  and  sunk  in  a  nav- 
igable channel,  accidentally  or  otherwise,  it  shall  be  the  duty 
of  the  owner  of  such  sunken  craft  to  immediately  mark  it 
with  a  buoy  or  beacon  during  the  day  and  a  lighted  lantern 
at  night,  and  to  maintain  such  marks  until  the  sunken  craft 
is  removed  or  abandoned,  and  the  neglect  or  failure  of  the 
said  owner  so  to  do  shall  be  unlawful ;  and  it  shall  be  the 
duty  of  the  owner  of  such  sunken  craft  to  commence  the  im- 
mediate removal  of  the  same,  and  prosecute  such  removal 
diligently,  and  failure  to  do  so  shall  be  considered  as  an 
abandonment  of  such  craft,  and  subject  the  same  to  removal 
by  the  United  States  as  hereinafter  provided  for. 

Penalties. 

Sec.  16.  That  every  person  and  every  corporation  that 
shall  violate,  or  that  shall  knowingly  aid,  abet,  authorize,  or 
instigate  a  violation  of  the  provisions  of  sections  thirteen, 
fourteen,  and  fifteen  of  this  act  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  thereof  shall  be  punished  by  a 
fine  not  exceeding  twenty-five  hundred  dollars  nor  less  than 
five  hundred  dollars,  or  by  imprisonment  (in  the  case  of  a 
natural  person)  for  not  less  than  thirty  days  nor  more  than 
one  year,  or  by  both  such  fine  and  imprisonment,  in  the  dis- 
cretion of  the  court,  one-half  of  said  fine  to  be  paid  to  the 
person  or  persons  giving  information  which  shall  lead  to 
conviction.  And  any  and  every  master,  pilot,  and  engineer, 
or  person  or  persons  acting  in  such  capacity,  respectively, 
on  board  of  any  boat  or  vessel  who  shall  knowingly  engage 
in  towing  any  scow,  boat,  or  vessel  loaded  with  any  material 
specified  in  section  thirteen  of  this  act  to  any  point  or  place 
of  deposit  or  discharge  in  any  harbor  or  navigable  water, 
elsewhere  than  within  the  limits  defined  and  permitted  by 
the  secretary  of  war,  or  who  shall  willfully  injure  or  destroy 
any  work  of  the  United  States  contemplated  in  section  four- 


428  STATUTES   REGULATING    NAVIGATION.  (Appdx.   ■ 

teen  of  this  act,  or  who  shall  willfully  obstruct  the  channel 
of  any  waterway  in  the  manner  contemplated  in  section  fif- 
teen of  this  act,  shall  be  deemed  guilty  of  a  violation  of  this 
act,  and  shall  upon  conviction  be  punished  as  hereinbefore 
provided  in  this  section,  and  shall  also  have  his  license  re- 
voked or  suspended  for  a  term  to  be  fixed  by  the  judge  be- 
fore whom  tried  and  convicted.  And  any  boat,  vessel,  scow, 
raft,  or  other  craft  used  or  employed  in  violating  any  of  the 
provisions  of  sections  thirteen,  fourteen,  and  fifteen  of  this 
act  shall  be  liable  for  the  pecuniary  penalties  specified  in  this 
section,  and  in  addition  thereto  for  the  amount  of  damages 
done  by  said  boat,  vessel,  scow,  raft,  or  other  craft,  which 
latter  sum  shall  be  placed  to  the  credit  of  the  appropria- 
tion for  the  improvement  of  the  harbor  or  waterway  in 
which  the  damage  occurred,  and  said  boat,  vessel,  scow,  raft 
or  other  craft  may  be  proceeded  against  summarily  by  way 
of  libel  in  any  district  court  of  the  United  States  having 
jurisdiction  thereof. 

Removal    of    obstructions    to    navigation. 

Sec.  19.  That  whenever  the  navigation  of  any  river,  lake, 
harbor,  sound,  bay,  canal,  or  other  navigable  waters  of  the 
United  States  shall  be  obstructed  or  endangered  by  any 
sunken  vessel,  boat,  water  craft,  raft,  or  other  similar  ob- 
struction, and  such  obstruction  has  existed  for  a  longer  pe- 
riod than  thirty  days,  or  whenever  the  abandonment  of  such 
obstruction  can  be  legally  established  in  a  less  space  of  time, 
the  sunken  vessel,  boat,  water  craft,  raft,  or  other  obstruc- 
tion shall  be  subject  to  be  broken  up,  removed,  sold,  or  oth- 
erwise disposed  of  by  the  secretary  of  war  at  his  discretion, 
without  liability  for  any  damage  to  the  owners  of  the  same : 
provided,  that  in  his  discretion,  the  secretary  of  war  may 
cause  reasonable  notice  of  such  obstruction  of  not  less  than 
thirty  days,  unless  the  legal  abandonment  of  the  obstruc- 
tion can  be  established  in  a  less  time,  to  be  given  by  pub- 
lication, addressed  "To  whom  it  may  concern,"  in  a  news- 


Appdx.)       ACT  OF  1899,  AS  TO  OBSTRUCTING  CHANNELS.  429 

paper  published  nearest  to  the  locality  of  the  obstruction, 
requiring  the  removal  thereof:  and  provided  also,  that  the 
secretary  of  war  may,  in  his  discretion,  at  or  after  the  time 
of  giving  such  notice,  cause  sealed  proposals  to  be  solicited 
by  public  advertisement,  giving  reasonable  notice  of  not  less 
than  ten  days,  for  the  removal  of  such  obstruction  as  soon 
as  possible  after  the  expiration  of  the  above  specified  thirty 
days'  notice,  in  case  it  has  not  in  the  meantime  been  so  re- 
moved, these  proposals  and  contracts,  at  his  discretion,  to 
be  conditioned  that  such  vessel,  boat,  water  craft,  raft,  or 
other  obstruction,  and  all  cargo  and  property  contained 
therein,  shall  become  the  property  of  the  contractor,  and  the 
contract  shall  be  awarded  to  the  bidder  making  the  proposi- 
tion most  advantageous  to  the  United  States  :  provided,  that 
such  bidder  .shall  give  satisfactory  security  to  execute  the 
work :  provided  further,  that  any  money  received  from  the 
sale  of  any  such  wreck,  or  from  any  contractor  for  the  re- 
moval of  wrecks,  under  this  paragraph  shall  be  covered  into 
the  treasury  of  the  United  States. 

Vessels   grounding,   etc. — Destruction  of,   etc 

Sec.  20.  That  under  emergency,  in  the  case  of  any  vessel, 
boat,  water  craft,  or  raft,  or  other  similar  obstruction,  sink- 
ing or  grounding,  or  being  unnecessarily  delayed  in  any  gov- 
ernment canal  or  lock,  or  in  any  navigable  waters  mentioned 
in  section  nineteen,  in  such  manner  as  to  stop,  seriously  in- 
terfere with,  or  specially  endanger  navigation,  in  the  opin- 
ion of  the  secretary  of  war,  or  any  agent  of  the  United 
States  to  whom  the  secretary  may  delegate  proper  author- 
ity, the  secretary  of  war  or  any  such  agent  shall  have  the 
right  to  take  immediate  possession  of  such  boat,  vessel,  or 
other  water  craft,  or  raft,  so  far  as  to  remove  or  to  destroy 
it  and  to  clear  immediately  the  canal,  lock,  or  navigable 
waters  aforesaid  of  the  obstruction  thereby  caused,  using 
his  best  judgment  to  prevent  any  unnecessary  injury;  and 
no  one  shall  interfere  with  or  prevent  such  removal  or  de- 


430  STATUTES    REGULATING    NAVIGATION.  (Appdx.  < 

struction:  provided,  that  the  officer  or  agent  charged  with 
the  removal  or  destruction  of  an  obstruction  under  this  sec- 
tion may  in  his  discretion  give  notice  in  writing  to  the  own- 
ers of  any  such  obstruction  requiring  them  to  remove  it : 
and  provided  further,  that  the  expense  of  removing  any  such 
obstruction  as  aforesaid  shall  be  a  charge  against  such  craft 
and  cargo ;  and  if  the  owners  thereof  fail  or  refuse  to  reim- 
burse the  United  States  for  such  expense  within  thirty  days 
after  notification,  then  the  officer  or  agent  aforesaid  may 
sell  the  craft  or  cargo,-  or  any  part  thereof  that  may  not  have 
been  destroyed  in  removal,  and  the  proceeds  of  such  sale 
shall  be  covered  into  the  treasury  of  the  United  States. 

Such  sum  of  money  as  may  be  necessary  to  execute  this  sec- 
tion and  the  preceding  section  of  this  act  is  hereby  appro- 
priated out  of  any  money  in  the  treasury  not  otherwise  ap- 
propriated, to  be  paid  out  on  the  requisition  of  the  secretary 
of  war. 

That  all  laws  or  parts  of  laws  inconsistent  with  the  fore- 
going sections  ten  to  twenty,  inclusive,  of  this  act  are  hereby 
repealed :  provided,  that  no  action  begun,  or  right  of  action 
accrued,  prior  to  the  passage  of  this  act  shall  be  affected  by 
this  repeal. 


Appdx.)  LIMITED    LIABILITY    ACTS.  431 


3.  THE  LIMITED  LIABILITY  ACTS. 

(i)  ACT  OF  MARCH  3,  1851.     (SECTIONS  4282- 
4289,  REV.  ST.,  WITH  AMENDMENTS  OF  FEB- 
RUARY 27,  1877,  FEBRUARY  18,  1875, 
AND  JUNE  19,  1886.) 

4282.  No  owner  of  any  vessel  shall  be  liable  to  answer 
for  or  make  good  to  any  person  any  loss  or  damage  which 
may  happen  to  any  merchandise  whatsoever,  which  shall  be 
shipped,  taken  in,  or  put  on  board  any  such  vessel,  by  rea- 
son or  by  means  of  any  fire  happening  to  or  on  board  the 
vessel,  unless  such  fire  is  caused  by  the  design  or  neglect  of 
such  owner. 

4283.  The  liability  of  the  owner  of  any  vessel,  for  any 
embezzlement,  loss,  or  destruction,  by  any  person,  of  any 
property,  goods,  or  merchandise,  shipped  or  put  on  board 
of  such  vessel,  or  for  any  loss,  damage,  or  injury  by  colli- 
sion, or  for  any  act,  matter,  or  thing,  lost,  damage,  or  for- 
feiture, done,  occasioned,  or  incurred,  without  the  privity  or 
knowledge  of  such  owner  or  owners,  shall  in  no  case  exceed 
the  amount  or  value  of  the  interest  of  such  owner  in  such 
vessel,  and  her  freight  then  pending. 

4284.  Whenever  any  such  embezzlement,  loss,  or  destruc- 
tion is  suffered  by  several  freighters  or  owners  of  goods, 
wares,  merchandise,  or  any  property  whatever,  on  the  same 
voyage,  and  the  whole  value  of  the  vessel,  and  her  freight 
for  the  voyage,  is  not  sufficient  to  make  compensation  to 
each  of  them,  they  shall  receive  compensation  from  the  own- 
er of  the  vessel,  in  proportion  to  their  respective  losses;  and 
for  that  purpose  the  freighters  and  owners  of  the  property, 
and  the  owner  of  the  vessel,  or  any  of  them,  may  take  the 
appropriate  proceedings  in  any  court,  for  the  purpose  of 
apportioning  the  sum  for  which  the  owners  of  the  vessel  may 
be  liable  among  the  parties  entitled  thereto. 


432  LIMITED    LIABILITY    ACTS.  (Appdx.  » 

4285.  It  shall  be  deemed  a  sufficient  compliance  on  the 
part  of  such  owner  with  the  requirements  of  this  title  (Rev. 
St.  §§  4131-4305)  relating  to  his  liability  for  any  embezzlement, 
loss,  or  destruction  of  any  property,  goods,  or  merchandise, 
if  he  shall  transfer  his  interest  in  such  vessel  and  freight,  for 
the  benefit  of  such  claimants,  to  a  trustee,  to  be  appointed 
by  any  court  of  competent  jurisdiction,  to  act  as  such  trus- 
tee for  the  person  who  may  prove  to  be  legally  entitled  there- 
to ;  from  and  after  which  transfer  all  claims  and  proceedings 
against  the  owner  shall  cease. 

4286.  The  charterer  of  any  vessel,  in  case  he  shall  man, 
victual,  and  navigate  such  vessel  at  his  own  expense,  or  by 
his  own  procurement,  shall  be  deemed  the  owner  of  such 
vessel  within  the  meaning  of  the  provisions  of  this  title 
(Rev.  St.  §§  4131-4305)  relating  to  the  limitation  of  the  lia- 
bility of  the  owners  of  vessels ;  and  such  vessel,  when  so 
chartered,  shall  be  liable  in  the  same  manner  as  if  navigat- 
ed by  the  owner  thereof. 

4287.  Nothing  in  the  five  preceding  sections  shall  be 
construed  to  take  away  or  affect  the  remedy  to  which  any 
party  may  be  entitled,  against  the  master,  officers,  or  sea- 
men, for  or  on  account  of  any  embezzlement,  injury,  loss, 
or  destruction  of  merchandise,  or  property,  put  on  board 
any  vessel,  or  on  account  of  any  negligence,  fraud,  or  other 
malversation  of  such  master,  officers,  or  seamen,  respec- 
tively, nor  to  lessen  or  take  away  any  responsibility  to  which 
any  master  or  seaman  of  any  vessel  may  by  law  be  liable, 
notwithstanding  such  master  or  seaman  may  be  an  owner 
or  part  owner  of  the  vessel. 

4288.  Any  person  shipping  oil  of  vitriol,  unslacked  lime, 
inflammable  matches,  or  gunpowder,  in  a  vessel  taking  car- 
go for  divers  persons  on  freight,  without  delivering,  at  the 
time  of  shipment,  a  note  in  writing,  expressing  the  nature 
and  character  of  such  merchandise,  to  the  master,  mate,  offi- 
cer, or  person  in  charge  of  the  lading  of  the  vessel,  shall  be 


Appdx.)  act  OF  JUNE  26,  1884.  433 

liable  to  the  United  States  in  a  penalty  of  one  thousand  dol- 
lars. 

4289.  The  provisions  of  the  seven  preceding  sections, 
and  of  section  eighteen  of  an  act  entitled  "An  act  to  re- 
move certain  burdens  on  the  American  merchant  marine 
and  encourage  the  American  foreign  carrying-trade,  and  for 
other  purposes,"  approved  June  twenty-sixth,  eighteen  hun- 
dren  and  eighty-four,  relating  to  the  limitations  of  the  lia- 
bility of  the  owners  of  vessels,  shall  apply  to  all  sea-going 
vessels,  and  also  to  all  vessels  used  on  lakes  or  rivers  or  in 
inland  navigation,  including  canal-boats,  barges,  and  light- 
ers 

(2)  ACT  JUNE  26,  1884,  §  18.     (23  STAT.  57.) 

The  individual  liability  of  a  ship-owner,  shall  be  limited 
to  the  proportion  of  any  or  all  debts  and  liabilities  that  his 
individual  share  of  the  vessel  bears  to  the  whole ;  and  the 
aggregate  liabilities  of  all  the  owners  of  a  vessel  on  account 
of  the  same  shall  not  exceed  the  value  of  such  vessel  and 
freight  pending:  provided,  that  this  provision  shall  not  af- 
fect the  liability  of  any  owner  incurred  previous  to  the  pas- 
sage of  this  act,  nor  prevent  any  claimant  from  joining  all 
the  owners  in  one  action;  nor  shall  the  same  apply  to  wages 
due  to  persons  employed  by  said  ship-owners. 

HUGHES.AD.— 28 


434  REV.  ST.  REGULATING  BONDING  OF  VESSELS.       (Appdx.  * 

4.  BONDS  TO  RELEASE  VESSELS  FROM  ARREST. 

Section  941,  Rev.  St  U.  S.  (as  amended  30  Stat  1354). 

An  act  to  amend  section  nine  hundred  and  forty-one  of  the 
Revised  Statutes. 

Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled,  that 
section  nine  hundred  and  forty-one  of  the  Revised  Statutes 
be,  and  the  same  is  hereby,  amended  to  read  as  follows : 

"Sec.  941.  When  a  warrant  of  arrest  or  other  process  in 
rem  is  issued  in  any  cause  of  admiralty  jurisdiction,  except 
in  cases  of  seizures  for  forfeiture  under  any  law  of  the  Unit- 
ed States,  the  marshal  shall  stay  the  execution  of  such  pro- 
cess, or  discharge  the  property  arrested  if  the  process  has 
been  levied,  on  receiving  from  the  claimant  of  the  property 
a  bond  or  stipulation  in  double  the  amount  claimed  by  the 
libellant,  with  sufficient  surety,  to  be  approved  by  the  judge 
of  the  court  where  the  cause  is  pending,  or,  in  his  absence, 
by  the  collector  of  the  port,  conditioned  to  answer  the  de- 
cree of  the  court  in  such  cause.  Such  bond  or  stipulation 
shall  be  returned  to  the  court,  and  judgment  thereon,  against 
both  the  principal  and  sureties,  may  be  recovered  at  the 
time  of  rendering  the  decree  in  the  original  cause.  And  the 
owner  of  any  vessel  may  cause  to  be  executed  and  deliv- 
ered to  the  marshal  a  bond  or  stipulation,  with  sufficient 
surety,  to  be  approved  by  the  judge  of  the  court  in  which 
he  is  marshal,  conditioned  to  answer  the  decree  of  said  court 
in  all  or  any  cases  that  shall  thereafter  be  brought  in  said 
court  against  the  said  vessel,  and  thereupon  the  execution 
of  all  such  process  against  said  vessel  shall  be  stayed  so  long 
as  the  amount  secured  by  such  bond  or  stipulation  shall  be 
at  least  double  the  aggregate  amount  claimed  by  the  libe- 
lants in  such  suits  which  shall  be  begun  and  pending  against 


Appdx.)  EVIDENCE    IN    THE    FEDERAL    COURTS.  435 

said  vessel ;  and  like  judgments  and  remedies  may  be  had 
on  said  bond  or  stipulation  as  if  a  special  bond  or  stipula- 
tion had  been  filed  in  each  of  said  suits.  The  court  may- 
make  such  orders  as  may  be  necessary  to  carry  this  section 
into  effect,  and  especially  for  the  giving  of  proper  notice  of 
any  such  suit.  Such  bond  or  stipulation  shall  be  endorsed 
by  the  clerk  with  a  minute  of  the  suits  wherein  process  is 
so  stayed,  and  further  security  may  at  any  time  be  required 
by  the  court.  If  a  special  bond  or  stipulation  in  the  partic- 
ular cause  shall  be  given  under  this  section,  the  liability  as 
to  said  cause  on  the  general  bond  or  stipulation  shall  cease." 
Approved,  March  3,  1899. 

6.  EVIDENCE  IN  THE  FEDERAL  COURTS. 

No    witness    excluded    on   account    of    color    or   interest; 
provided,    etc. 

Sec.  858.  In  the  courts  of  the  United  States  no  witness 
shall  be  excluded  in  any  action  on  account  of  color,  or  in 
any  civil  action  because  he  is  a  party  to  or  interested  in  the 
issue  tried :  provided,  that  in  actions  by  or  against  execu- 
tors, administrators,  or  guardians,  in  which  judgment  may 
be  rendered  for  or  against  them,  neither  party  shall  be  al- 
lowed to  testify  against  the  other,  as  to  any  transaction  with, 
or  statement  by,  the  testator,  intestate,  or  ward,  unless 
called  to  testify  thereto  by  the  opposite  party,  or  required  to 
testify  thereto  by  the  court.  In  all  other  respects,  the  laws 
of  the  state  in  which  the  court  is  held  shall  be  the  rules  of 
decision  as  to  the  competency  of  witnesses  in  the  courts  of 
the  United  States  in  trials  at  common  law,  and  in  equity  and 
admiralty. 

Mode  of  proof  in  equity  and  admiralty  causes. 

Sec.  862.  The  mode  of  proof  in  causes  of  equity  and  of 
admiralty  and  maritime  jurisdiction  shall  be  according  to 
rules  now  or  hereafter  prescribed  by  the  supreme  court,  ex- 
cept as  herein  specially  provided. 


436  EVIDENCE    IN    THE    FEDERAL    COURTS.  (Appdxv 

Depositions  de  bene  esse. 

Sec.  863.  The  testimony  of  any  witness  may  be  taken  in 
any  civil  cause  depending  in  a  district  or  circuit  court  by 
deposition  de  bene  esse,  when  the  witness  lives  at  a  greater 
distance  from  the  place  of  trial  than  one  hundred  miles,  or  is 
bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the 
United  States,  or  out  of  the  district  in  which  the  case  is  to 
be  tried,  and  to  a  greater  distance  than  one  hundred  miles 
from  the  place  of  trial,  before  the  time  of  trial,  or  when  he 
is  ancient  and  infirm.  The  deposition  may  be  taken  before 
any  judge  of  any  court  of  the  United  States,  or  any  commis- 
sioner of  a  circuit  court,  or  any  clerk  of  a  district  or  circuit 
court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or 
superior  court,  mayor  or  chief  magistrate  of  a  city,  judge  of 
a  county  court,  or  court  of  common  pleas  of  any  of  the 
United  States,  or  any  notary  public,  not  being  of  counsel  or 
attorney  to  either  of  the  parties,  nor  interested  in  the  event 
of  the  cause.  Reasonable  notice  must  first  be  given  in  writ- 
ing by  the  party  or  his  attorney  proposing  to  take  such  dep- 
osition, to  the  opposite  party  or  his  attorney  of  record,  as 
either  may  be  nearest,  which  notice  shall  state  the  name  of 
the  witness  and  the  time  and  place  of  the  taking  of  his  dep- 
osition ;  and  in  all  cases  in  rem,  the  person  having  the  agen- 
cy or  possession  of  the  property  at  the  time  of  seizure  shall 
be  deemed  the  adverse  party,  until  a  claim  shall  have  been 
put  in;  and  whenever,  by  reason  of  the  absence  from  the 
district  and  want  of  an  attorney  of  record  or  other  reason, 
the  giving  of  the  notice  herein  required  shall  be  impracti- 
cable, it  shall  be  lawfui  to  take  such  depositions  as  there 
shall  be  urgent  necessity  for  taking,  upon  such  notice  as  any 
judge  authorized  to  hold  courts  in  such  circuit  or  district 
shall  think  reasonable  and  direct.  Any  person  may  be  com- 
pelled to  appear  and  depose  as  provided  by  this  section,  in 
the  same  manner  as  witnesses  may  be  compelled  to  appear 
and  testify  in  court. 


Appdx.)  EVIDENCE    IN    THE    FEDERAL    COURTS.  437 

Mode  of  taking  depositions  de  bene  esse. 

Sec.  864.  (As  amended  May  23,  1900,  31  Stat.  182.)  Ev- 
ery person  deposing  as  provided  in  the  preceding  section 
shall  be  cautioned  and  sworn  to  testify  the  whole  truth,  and 
carefully  examined. 

His  testimony  shall  be  reduced  to  writing  or  typewriting 
by  the  officer  taking  the  deposition,  or  by  some  person  un- 
der his  personal  supervision,  or  by  the  deponent  himself  in 
the  officer's  presence,  and  by  no  other  person,  and  shall, 
after  it  has  been  reduced  to  writing  or  typewriting,  be  sub- 
scribed by  the  deponent. 

Transmission  to  the  court  of  depositions  de  bene  esse. 

Sec.  865.  Every  deposition  taken  under  the  two  preced- 
ing sections  shall  be  retained  by  the  magistrate  taking  it  un- 
til he  delivers  it  with  his  own  hand  into  the  court  for  which 
it  is  taken ;  or  it  shall,  together  with  the  certificate  of  the 
reasons  as  aforesaid  of  taking  it  and  of  the  notice,  if  any, 
given  to  the  adverse  party,  be  by  him  sealed  up  and  direct- 
ed to  such  court,  and  remain  under  his  seal  until  opened  in 
court.  But  unless  it  appears  to  the  satisfaction  of  the  court 
that  the  witness  is  then  dead,  or  gone  out  of  the  United 
States,  or  to  a  greater  distance  than  one  hundred  miles  from 
the  place  where  the  court  is  sitting,  or  that,  by  reason  of 
age,  sickness,  bodily  infirmity,  or  imprisonment,  he  is  un- 
able to  travel  and  appear  at  court,  such  deposition  shall  not 
be  used  in  the  cause. 

Depositions    under   a   dedimus    potestatem    and   in   perpetuam. 

Sec.  866.  In  any  case  where  it  is  necessary,  in  order  to 
prevent  a  failure  or  delay  of  justice,  any  of  the  courts  of  the 
United  States  may  grant  a  dedimus  potestatem  to  take  dep- 
ositions according  to  common  usage ;  and  any  circuit  court, 
i  application  to  it  as  a  court  of  equity,  may,  according 
to  the  usages  of  chancer)-,  direct  depositions  to  be  taken  in 


43S  EVIDENCE   IN    THE    FEDERAL    COURTS.  (Appdx. 

perpetuam  rei  mcmoriam,  if  they  relate  to  any  matters  that 
may  be  cognizable  in  any  court  of  the  United  States.  And 
the  provisions  of  sections  eight  hundred  and  sixty-three, 
eight  hundred  and  sixty-four,  and  eight  hundred  and  sixty- 
five,  shall  not  apply  to  any  deposition  to  be  taken  under  the 
authority  of  this  section. 

Depositions  in  perpetuam,  etc.,  admissible  at  discretion 
of   court. 

Sec.  867.  Any  court  of  the  United  States  may,  in  its  dis- 
cretion, admit  in  evidence  in  any  cause  before  it  any  deposi- 
tion taken  in  perpetuam  rei  memoriam,  which  would  be  so 
admissible  in  a  court  of  the  state  wherein  such  cause  is  pend- 
ing, according  to  the  laws  thereof. 

Depositions  under  a  dedimus  potestatem,  how  taken. 

Sec.  868.  When  a  commission  is  issued  by  any  court  of 
the  United  States  for  taking  the  testimony  of  a  witness 
named  therein  at  any  place  within  any  district  or  territory, 
the  clerk  of  any  court  of  the  United  States  for  such  district 
or  territory  shall,  on  the  application  of  either  party  to  the 
suit,  or  of  his  agent,  issue  a  subpoena  for  such  witness,  com- 
manding him  to  appear  and  testify  before  the  commissioner 
named  in  the  commission,  at  a  time  and  place  stated  in  the 
subpcena;  and  if  any  witness,  after  being  duly  served  with 
such  subpcena,  refuses  or  neglects  to  appear,  or,  after  ap- 
pearing, refuses  to  testify,  not  being  privileged  from  giving 
testimony,  and  such  refusal  or  neglect  is  proven  to  the  sat- 
isfaction of  any  judge  of  the  court  whose  clerk  issues  such 
subpcena,  such  judge  may  proceed  to  enforce  obedience  to 
the  process,  or  punish  the  disobedience,  as  any  court  of  the 
United  States  may  proceed  in  case  of  disobedience  to  pro- 
cess of  subpcena  to  testify  issued  by  such  court. 

Subpoena  duces  tecum  under  a  dedimus  potestatem. 

Sec.  869.  When  either  party  in  such  suit  applies  to  any 
judge  of  a  United  States  court  in  such  district  or  territory 


Appdx.)  EVIDENCE    IN    THE    FEDERAL    COURTS.  439 

for  a  subpoena  commanding  the  witness,  therein  to  be  named, 
to  appear  and  testify  before  said  commissioner,  at  the  time 
and  place  to  be  stated  in  the  subpoena,  and  to  bring  with 
him  and  produce  to  such  commissioner  any  paper  or  writing 
or  written  instrument  or  book  or  other  document,  supposed 
to  be  in  the  possession  or  power  of  such  witness,  and  to  be 
described  in  the  subpoena,  such  judge,  on  being  satisfied  by 
the  affidavit  of  the  person  applying,  or  otherwise,  that  there 
is  reason  to  believe  that  such  paper,  writing,  written  instru- 
ment, book,  or  other  document  is  in  the  possession  or  pow- 
er of  the  witness,  and  that  the  same,  if  produced,  would  be 
competent    and   material    evidence    for   the    party   applying 
therefor,  may  order  the  clerk  of  said  court  to  issue  such  sub- 
poena accordingly.     And  if  the  witness,  after  being  served 
with  such  subpoena,  fails  to  produce  to  the  commissioner  at 
the  time  and  place  stated  in  the  subpoena,  any  such  paper, 
writing,  written  instrument,  book,  or  other  document,  being 
in  his  possession  or  power,  and  described  in  the  subpoena, 
and  such  failure  is  proved  to  the  satisfaction  of  said  judge, 
he  may  proceed  to  enforce  obedience  to  said  process  of  sub- 
poena or  punish  the  disobedience  in  like  manner  as  any  court 
of  the  United  States  may  proceed  in  case  of  disobedience  to 
like  process  issued  by  such  court.     When  any  such  paper, 
writing,  written  instrument,  book,  or  other  document  is  pro- 
duced to  such  commissioner,  he  shall,  at  the  cost  of  the  par- 
ty requiring  the  same,  cause  to  be  made  a  correct  copy  there- 
of, or  of  so  much  thereof  as  may  be  required  by  either  of 
the  parties. 

Witness  under  a  dedimus  potestatem,  when  required  to 
attend. 

Sec.  870.  No  witness  shall  be  required,  under  the  provi- 
sions of  either  of  the  two  preceding  sections,  to  attend  at 
any  place  out  of  the  county  where  he  resides,  nor  more  than 
forty  miles  from  the  place  of  his  residence,  to  give  his  dep- 
osition ;  nor  shall  any  witness  be  deemed  guilty  of  contempt 


4-40  EVIDENCE    IN    THE    FEDERAL    COURTS.  (Appdx. 

for  disobeying  any  subpoena  directed  to  him  by  virtue  of 
either  of  the  said  sections,  unless  his  fee  for  going  to,  re- 
turning from,  and  one  day's  attendance  at,  the  place  of  ex- 
amination, are  paid  or  tendered  him  at  the  time  of  the  serv- 
ice of  the  subpoena. 

Letters  rogatory  from  United  States  courts. 

Sec.  875.  When  any  commission  or  letter  rogatory,  issued 
to  take  the  testimony  of  any  witness  in  a  foreign  country, 
in  any  suit  in  which  the  United  States  are  parties  or  have 
an  interest,  is  executed  by  the  court  or  the  commissioner  to 
whom  it  is  directed,  it  shall  be  returned  by  such  court  or 
commissioner  to  the  minister  or  consul  of  the  United  States 
nearest  the  place  where  it  is  executed.  On  receiving  the 
same,  the  said  minister  or  consul  shall  indorse  thereon  a  cer- 
tificate, stating  when  and  where  the  same  was  received,  and 
that  the  said  deposition  is  in  the  same  condition  as  when  he 
received  it ;  and  he  shall  thereupon  transmit  the  said  letter 
or  commission,  so  executed  and  certified,  by  mail,  to  the 
clerk  of  the  court  from  which  the  same  issued,  in  the  man- 
ner in  which  his  official  dispatches  are  transmitted  to  the 
government.  And  the  testimony  of  witnesses  so  taken  and 
returned  shall  be  read  as  evidence  on  the  trial  of  the  suit  in 
which  it  was  taken,  without  objection  as  to  the  method  of 
returning  the  same.  When  letters  rogatory  are  addressed 
from  any  court  of  a  foreign  country  to  any  circuit  court  of 
the  United  States,  a  commissioner  of  such  circuit  court  des- 
ignated by  said  court  to  make  the  examination  of  the  wit- 
nesses mentioned  in  said  letters,  shall  have  power  to  compel 
the  witnesses  to  appear  and  depose  in  the  same  manner  as 
witnesses  may  be  compelled  to  appear  and  testify  in  courts. 

Subpoenas  for  witnesses  to  run  into  another  district. 

Sec.  876.  Subpoenas  for  witnesses  who  are  required  to  at- 
tend a  court  of  the  United  States,  in  any  district,  may  run 
into  any  other  district;  provided,  that  in  civil  causes  the 
witnesses  living  out  of  the  district  in  which  the  court  is  held 


Appdx.)  SUITS    IN    FORMA    PAUPERIS.  441 

do  not  live  at  a  greater  distance  than  one  hundred  miles 
from  the  place  of  holding  the  same. 

Witnesses,   form   of   subpoena;    attendance  nnder. 

Sec.  877.  Witnesses  who  are  required  to  attend  any  term 
of  a  circuit  or  district  court  on  the  part  of  the  United  States, 
shall  be  subpoenaed  to  attend  to  testify  generally  on  their 
behalf,  and  not  to  depart  the  court  without  leave  thereof,  or 
of  the  district  attorney;  and  under  such  process  they  shall 
appear  before  the  grand  or  petit  jury,  or  both,  as  they  may 
be  required  by  the  court  or  district  attorney. 

ACT    OF   MARCH   9,    1892. 

An  act  to  provide  an  additional  mode  of  taking  depositions 
of  witnesses  in  causes  pending  in  the  courts  of  the  United 
States.     (27  Stat.  7.) 

Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled,  that  in 
addition  to  the  mode  of  taking  the  depositions  of  witnesses 
in  causes  pending  at  law  or  equity  in  the  district  and  circuit 
courts  of  the  United  States,  it  shall  be  lawful  to  take  the 
depositions  or  testimony  of  witnesses  in  the  mode  prescribed 
by  the  iaws  of  the  state  in  which  the  courts  are  held. 

6.  SUITS  IN  FORMA  PAUPERIS. 

(27  Stat.  252.) 

An  act  providing  when  plaintiff  may  sue  as  a  poor  person 
and  when  counsel  shall  be  assigned  by  the  court. 

Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled,  that 
any  citizen  of  the  United  States,  entitled  to  commence  any 
suit  or  action  in  any  court  of  the  United  States,  may  com- 
mence and  prosecute  to  conclusion  any  such  suit  or  action 
without  being  required  to  prepay  fees  or  costs,  or  give  secu- 


442  SUITS    IN    FORMA    PAUPERIS.  (Appdx. 

rity  therefor  before  or  after  bringing  suit  or  action,  upon 
filing  in  said  court  a  statement  under  oath,  in  writing,  that, 
because  of  his  poverty,  he  is  unable  to  pay  the  costs  of  said 
suit  or  action  which  he  is  about  to  commence,  or  to  give 
security  for  the  same,  and  that  he  believes  he  is  entitled  to 
the  redress  he  seeks  by  such  suit  or  action,  and  setting  forth 
briefly  the  nature  of  his  alleged  cause  of  action. 

Sec.  2.  That  after  any  such  suit  or  action  shall  have  been 
brought,  or  that  is  now  pending,  the  plaintiff  may  answer 
and  avoid  a  demand  for  fees  or  security  for  costs  by  filing 
a  like  affidavit,  and  wilful  false  swearing  in  any  affidavit  pro- 
vided for  in  this  or  the  previous  section,  shall  be  punishable 
as  perjury  as  in  other  cases. 

Sec.  3.  That  the  officers  of  court  shall  issue,  serve  all  pro- 
cess, and  perform  all  duties  in  such  cases,  and  witnesses 
shall  attend  as  in  other  cases,  and  the  plaintiff  shall  have  the 
same  remedies  as  are  provided  by  law  in  other  cases. 

Sec.  4.  That  the  court  may  request  any  attorney  of  the 
court  to  represent  such  poor  person,  if  it  deems  the  case 
worthy  of  a  trial,  and  may  dismiss  any  such  cause  so  brought 
tinder  this  act  if  it  be  made  to  appear  that  the  allegation  of 
poverty  is  untrue,  or  if  said  court  be  satisfied  that  the  al- 
leged cause  of  action  is  frivolous  or  malicious. 

Sec.  5.  That  judgment  may  be  rendered  for  costs  at  the 
conclusion  of  the  suit  as  in  other  cases :  provided,  that  the 
United  States  shall  not  be  liable  for  any  of  the  costs  thus 
incurred. 

Approved,  July  20,  1892. 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  443 

7.    THE  ADMIRALTY  RULES  OF  PRACTICE. 

(The  Captions  are  Added  for  Convenience  of  Reference.) 

Rules  of  Practice  for  the  Courts  of  the  United  States  in 
Admiralty  and  Maritime  Jurisdiction,  on  the  Instance  Side 
of  the  Court,  in  Pursuance  of  the  Act  of  the  23d  of  Au- 
gust, 1842,  chapter  188. 

1. 

[Process  on   filing   libel.] 

No  mesne  process  shall  issue  from  the  district  courts  in 
any  civil  cause  of  admiralty  and  maritime  jurisdiction  until 
the  libel,  or  libel  of  information,  shall  be  filed  in  the  clerk's 
office  from  which  such  process  is  to  issue.  All  process  shall 
be  served  by  the  marshal  or  by  his  deputy,  or,  where  he  or 
they  are  interested,  by  some  discreet  and  disinterested  per- 
son appointed  by  the  court. 

2. 

[Process  in  suits  in  personam.] 

In  suits  in  personam,  the  mesne  process  may  be  by  a  sim- 
ple warrant  of  arrest  of  the  person  of  the  defendant,  in  the 
nature  of  a  capias,  or  by  a  warrant  of  arrest  of  the  person 
of  the  defendant,  with  a  clause  therein,  that  if  he  cannot  be 
found,  to  attach  his  goods  and  chattels  to  the  amount  sued 
for,  or  if  such  property  cannot  be  found,  to  attach  his  cred- 
its and  effects  to  the  amount  sued  for  in  the  hands  of  the 
garnishees  named  therein;  or  by  a  simple  monition,  in  the 
nature  of  a  summons  to  appear  and  answer  to  the  suit,  as 
the  libellant  shall,  in  his  libel  or  information,  pray  for  or 

elect. 

3. 

[Bail  in  suits  in  personam.] 

In  all  suits  in  personam,  where  a  simple  warrant  of  ar- 
rest issues  and  is  executed,  the  marshal  may  take  bail,  with 


444  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 

sufficient  sureties,  front  the  party  arrested,  by  bond  or  stip- 
ulation, upon  condition  that  he  will  appear  in  the  suit  and 
abide  by  all  orders  of  the  court,  interlocutory  or  final,  in  the 
cause,  and  pay  the  money  awarded  by  the  final  decree  ren- 
dered therein  in  the  court  to  which  the  process  is  return- 
able, or  in  any  appellate  court.  And  upon  such  bond  or 
stipulation  summary  process  of  execution  may  and  shall  be 
issued  against  the  principal  and  sureties  by  the  court  to 
which  such  process  is  returnable,  to  enforce  the  final  decree 
so  rendered,  or  upon  appeal  by  the  appellate  court. 

4. 
[Bond  in  attachment  suits  in  personam.] 

In  all  suits  in  personam,  where  goods  and  chattels,  or 
credits  and  effects,  are  attached  under  such  warrant  author- 
izing the  same,  the  attachment  may  be  dissolved  by  order 
of  the  court  to  which  the  same  warrant  is  returnable,  upon 
the  defendant  whose  property  is  so  attached  giving  a  bond 
or  stipulation,  with  sufficient  sureties,  to  abide  by  all  orders, 
interlocutory  or  final,  of  the  court,  and  pay  the  amount 
awarded  by  the  final  decree  rendered  in  the  court  to  which 
the  process  is  returnable,  or  in  any  appellate  court ;  and  up- 
on such  bond  or  stipulation,  summary  process  of  execution 
shall  and  may  be  issued  against  the  principal  and  sureties 
by  the  court  to  which  such  warrant  is  returnable,  to  enforce 
the  final  decree  so  rendered,  or  upon  appeal  by  the  appellate 

court. 

5. 

[Bonds — Before  whom   given.] 

Bonds  or  stipulations  in  admiralty  suits  may  be  given  and 
taken  in  open  court,  or  at  chambers,  or  before  any  commis- 
sioner of  the  court  who  is  authorized  by  the  court  to  take 
affidavits  of  bail  and  depositions  in  cases  pending  before  the 
court,  or  any  commissioner  of  the  United  States  authorized 
by  law  to  take  bail  and  affidavits  in  civil  cases. 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  445 

6. 

[Reduction  of  bail — New  sureties.] 

In  all  suits  in  personam,  where  bail  is  taken,  the  court 
may,  upon  motion,  for  due  cause  shown,  reduce  the  amount 
of  the  sum  contained  in  the  bond  or  stipulation  therefor ; 
and  in  all  cases  where  a  bond  or  stipulation  is  taken  as  bail, 
or  upon  dissolving  an  attachment  of  property  as  aforesaid, 
if  either  of  the  sureties  shall  become  insolvent  pending  the 
suit,  new  sureties  may  be  required  by  the  order  of  the  court, 
to  be  given,  upon  motion,  and  due  proof  thereof. 

7. 

[When  special  order  necessary  for  warrant  of   arrest.] 

In  suits  in  personam,  no  warrant  of  arrest,  either  of  the 

person  or  property  of  the  defendant,  shall  issue  for  a  sum 

exceeding  five  hundred  dollars,  unless  by  the  special  order 

of  the  court,  upon  affidavit  or  other  proper  proof  showing 

the  proorietv  thereof. 

8. 

[Monition    to    third    parties    in    suits    in    rem.] 

In  all  suits  in  rem  against  a  ship,  her  tackle,  sails,  apparel, 
furniture,  boats,  or  other  appurtenances,  if  such  tackle,  sails, 
apparel,  furniture,  boats,  or  other  appurtenances  are  in  the 
possession  or  custody  of  any  third  person,  the  court  may, 
after  a  due  monition  to  such  third  person,  and  a  hearing  of 
the  cause,  if  any,  why  the  same  should  not  be  delivered  over, 
award  and  decree  that  the  same  be  delivered  into  the  cus- 
tody of  the  marshal  or  other  proper  officer,  if,  upon  the  hear- 
ing, the  same  is  required  by  law  and  justice. 

9. 

[Process   in  suits  in   rein.] 

In  all  cases  of  seizure,  and  in  other  suits  and  proceeding 
in  rem,  the   process,  unless  otherwise  provided   for  by  sl.il 
ute,  shall  be  by  a  warrant  of  arrest  of  the  ship,  goods,  or 


•1-lti  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 

other  thing  to  be  arrested ;  and  the  marshal  shall  thereupon 
arrest  and  take  the  ship,  goods,  or  other  thing  into  his  pos- 
session for  safe  custody,  and  shall  cause  public  notice  there- 
of  and  of  the  time  assigned  for  the  return  of  such  process 
and  the  hearing  of  the  cause,  to  be  given  in  such  newspaper 
within  the  district  as  the  district  court  shall  order;  and  if 
there  is  no  newspaper  published  therein,  then  in  such  other 
public  places  in  the  district  as  the  court  shall  direct. 

10. 
[Perishable  goods — How   disposed  of.] 

In  all  cases  where  any  goods  or  other  things  are  arrested, 
if  the  same  are  perishable,  or  are  liable  to  deterioration,  de- 
cay, or  injury,  by  being  detained  in  custody  pending  the  suit, 
the  court  may,  upon  the  application  of  either  party,  in  its 
discretion,  order  the  same  or  so  much  thereof  to  be  sold  as 
shall  be  perishable  or  liable  to  depreciation,  decay,  or  injury ; 
and  the  proceeds,  or  so  much  thereof  as  shall  be  a  full  se- 
curity to  satisfy  in  decree,  to  be  brought  into  court  to  abide 
the  event  of  the  suit ;  or  the  court  may,  upon  the  applica- 
tion of  the  claimant,  order  a  delivery  thereof  to  him,  upon  a 
due  appraisement,  to  be  had  under  its  direction,  either  up- 
on the  claimant's  depositing  in  court  so  much  money  as  the 
court  shall  order,  or  upon  his  giving  a  stipulation,  with  sure- 
ties, in  such  sum  as  the  court  shall  direct,  to  abide  by  and 
pay  the  money  awarded  by  the  final  decree  rendered  by  the 
court,  or  the  appellate  court,  if  any  appeal  intervenes,  as  the 
one  or  the  other  course  shall  be  ordered  by  the  court. 

11. 

[Ship — How  appraised  or  sold.] 

In  like  manner,  where  any  ship  shall  be  arrested,  the  same 
may,  upon  the  application  of  the  claimant,  be  delivered  to 
him  upon  a  due  appraisement,  to  be  had  under  the  direction 
of  the  court,  upon  the  claimant's  depositing  in  court  so 
much  money  as  the  court  shall  order,  or  upon  his  giving  a 


AppdX.)  ADMIRALTY    RULES    OF    PRACTICE.  447 

stipulation,  with  sureties,  as  aforesaid ;  and  if  the  claimant 
shall  decline  any  such  application,  then  the  court  may,  in  its 
discretion,  upon  the  application  of  either  party,  upon  due 
cause  shown,  order  a  sale  of  such  ship,  and  the  proceeds 
thereof  to  be  brought  into  court  or  otherwise  disposed  of,  as 
it  may  deem  most  for  the  benefit  of  all  concerned. 

12. 
[Material-men — Remedies.] 

In  all  suits  by  material-men  for  supplies  or  repairs,  or 

other  necessaries,  the  libellant  may  proceed  against  the  ship 

and  freight  in  rem,  or  against  the  master  or  owner  alone  in 

personam. 

13. 

[Seamen's   wages — Remedies.] 

In  all  suits  for  mariners'  wages,  the  libellant  may  proceed 
against  the  ship,  freight,  and  master,  or  against  the  ship  and 
freight,  or  against  the  owner  or  the  master  alone  in  per- 
sonam. 

14. 

[Pilotage — Remedies.] 

Tn  all  suits  for  pilotage  the  libellant  may  proceed  against 
the  ship  and  master,  or  against  the  ship,  or  against  the  own- 
er alone  or  the  master  alone  in  personam. 

15. 

[Collision — Remedies.] 

In  all  suits  for  damage  by  collision,  the  libellant  may  pro- 
ceed against  the  ship  and  master,  or  against  the  ship  alone, 
or  against  the  master  or  the  owner  alone  in  personam. 

16. 

[Assault   or  beating — Remedies.] 

In  all  suits  for  an  assault  or  beating  on  the  high  seas,  or 
elsewhere  within  the  admiralty  and  maritime  jurisdiction, 
the  suit  shall  be  in  personam  only. 


448  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 

17. 

[Maritime    hypothecation — Remedies.] 

In  all  suits  against  the  ship  or  freight,  founded  upon  a 
mere  maritime  hypothecation,  either  express  or  implied,  of 
the  master,  for  moneys  taken  up  in  a  foreign  port  for  sup- 
plies or  repairs  or  other  necessaries  for  the  voyage,  with- 
out any  claim  of  marine  interest,  the  libellant  may  proceed 
either  in  rem  or  against  the  master  or  the  owner  alone  in 
personam. 

18. 

[Bottomry   bonds — Remedies.] 

In  all  suits  on  bottomry  bonds,  properly  so  called,  the  suit 
shall  be  in  rem  only  against  the  property  hypothecated,  or 
the  proceeds  of  the  property,  in  whosesoever  hands  the  same 
may  be  found,  unless  the  master  has,  without  authority, 
given  the  bottomry  bond,  or  by  his  fraud  or  misconduct  has 
avoided  the  same,  or  has  subtracted  the  property,  or  unless 
the  owner  has,  by  his  own  misconduct  or  wrong,  lost  or  sub- 
tracted the  property,  in  which  latter  cases  the  suit  may  be 
in  personam  against  the  wrong-doer. 

19. 

[Salvage — Remedies.] 

In  all  suits  for  salvage,  the  suit  may  be  in  rem  against  the 
property  saved,  or  the  proceeds  thereof,  or  in  personam 
against  the  party  at  whose  request  and  for  whose  benefit  the 
salvage  service  has  been  performed. 

20. 

[Petitory  or   possessory  suits.] 

In  all  petitory  and  possessory  suits  between  part  owners 
or  adverse  proprietors,  or  by  the  owners  of  a  ship  or  the  ma- 
jority thereof,  against  the  master  of  a  ship,  for  the  ascertain- 
ment of  the  title  and  delivery  of  the  possession,  or  for  the 
possession  only,  or  by  one  or  more  part  owners  against  the 
others  to  obtain  security  for  the  return  of  the  ship  from  any 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  449 

voyage  undertaken  without  their  consent,  or  by  one  or  more 
part  owners  against  the  others  to  obtain  possession  of  the 
ship  for  any  voyage,  upon  giving  security  for  the  safe  re- 
turn thereof,  the  process  shall  be  by  an  arrest  of  the  ship, 
and  by  a  monition  to  the  adverse  party  or  parties  to  appear 
and  make  answer  to  the  suit. 

21. 
[Execution  on  decrees.] 

In  all  cases  of  a  final  decree  for  the  payment  of  money, 
the  libellant  shall  have  a  writ  of  execution,  in  the  nature  of  a 
fieri  facias,  commanding  the  marshal  or  his  deputy  to  levy 
and  collect  the  amount  thereof  out  of  the  goods  and  chat- 
tels, lands  and  tenements,  or  other  real  estate,  of  the  defend- 
ant or  stipulators. 

22. 

[Requisites  of  libel  of  information.] 

All  informations  and  libels  of  information  upon  seizures 
for  any  breach  of  the  revenue,  or  navigation,  or  other  laws 
of  the  United  States,  shall  state  the  place  of  seizure,  whether 
it  be  on  land  or  on  the  high  seas,  or  on  navigable  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  the  district  within  which  the  property  is  brought 
and  where  it  then  is.  The  information  or  libel  of  informa- 
tion shall  also  propound  in  distinct  articles  the  matters  re- 
lied on  as  grounds  or  causes  of  forfeiture,  and  aver  the  same 
to  be  contrary  to  the  form  of  the  statute  or  statutes  of  the 
United  States  in  such  case  provided,  as  the  case  may  re- 
quire, and  shall  conclude  with  a  prayer  of  due  process  to 
enforce  the  forfeiture,  and  to  give  notice  to  all  persons  con- 
cerned in  interest  to  appear  and  show  cause  at  the  return- 
day  of  the  process  why  the  forfeiture  should  not  be  decreed. 

23. 
[Requisites  of  libel  in  instance  causes.] 

All  libels  in  instance  causes,  civil  or  maritime,  shall  state 
the  nature  of  the  cause;   as,  for  example,  thai  it  is  a  cause, 

HUGIIKS,AD.-29 


450  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx/ 

civil  and  maritime,  of  contract,  or  of  tort  or  damage,  or  of 
salvage,  or  of  possession,  or  otherwise,  as  the  case  may  be ; 
and,  if  the  libel  be  in  rem,  that  the  property  is  within  the 
district ;  and,  if  in  personam,  the  names  and  occupations 
and  places  of  residence  of  the  parties.  The  libel  shall  also 
propound  and  articulate  in  distinct  articles  the  various  al- 
legations of  fact  upon  which  the  libellant  relies  in  support  of 
his  suit,  so  that  the  defendant  may  be  enabled  to  answer  dis- 
tinctly and  separately  the  several  matters  contained  in  each 
article ;  and  it  shall  conclude  with  a  prayer  of  due  process 
to  enforce  his  rights,  in  rem  or  in  personam  (as  the  case  may 
require),  and  for  such  relief  and  redress  as  the  court  is  com- 
petent to  give  in  the  premises.  And  the  libellant  may  fur- 
ther require  the  defendant  to  answer  on  oath  all  interroga- 
tories propounded  by  him  touching  all  and  singular  the  al- 
legations in  the  libel  at  the  close  or  conclusion  thereof. 

24. 

[Amendments  to  libels.] 
In  all  informations  and  libels  in  causes  of  admiralty  and 
maritime  jurisdiction,  amendments  in  matters  of  form  may 
be  made  at  any  time,  on  motion  to  the  court,  as  of  course. 
And  new  counts  may  be  filed,  and  amendments  in  matters 
of  substance  may  be  made,  upon  motion,  at  any  time  before 
the  final  decree,  upon  such  terms  as  the  court  shall  impose. 
And  where  any  defect  of  form  is  set  down  by  the  defendant 
upon  special  exceptions,  and  is  allowed,  the  court  may,  in 
granting  leave  to  amend,  impose  terms  upon  the  libellant. 

25. 

[Stipulation  for  costs  by   defendant.] 

In  all  cases  of  libels  in  personam,  the  court  may,  in  its 
discretion,  upon  the  appearance  of  the  defendant,  where  no 
bail  has  been  taken,  and  no  attachment  of  property  has  been 
made  to  answer  the  exigency  of  the  suit,  require  the  defend- 
ant to  give  a  stipulation,  with  sureties,  in  such  sum  as  the 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  451 

court  shall  direct,  to  pay  all  costs  and  expenses  which  shall 
be  awarded  against  him  in  the  suit,  upon  the  final  adjudi- 
cation thereof,  or  by  any  interlocutory  order  in  the  progress 

of  the  suit. 

26. 

[Claim — How    verified.] 

In  suits  in  rem,  the  party  claiming  the  property  shall  ver- 
ify his  claim  on  oath  or  solemn  affirmation,  stating  that  the 
claimant  by  whom  or  on  whose  behalf  the  claim  is  made  is 
the  true  and  bona  fide  owner,  and  that  no  other  person  is 
the  owner  thereof.  And,  where  the  claim  is  put  in  by  an 
agent  or  consignee,  he  shall  also  make  oath  that  he  is  duly 
authorized  thereto  by  the  owner;  or,  if  the  property  be,  at 
the  time  of  the  arrest,  in  the  possession  of  the  master  of  a 
ship,  that  he  is  the  lawful  bailee  thereof  for  the  owner. 
And,  upon  putting  in  such  claim,  the  claimant  shall  file  a 
stipulation,  with  sureties,  in  such  sum  as  the  court  shall  di- 
rect, for  the  payment  of  all  costs  and  expenses  which  shall 
be  awarded  against  him  by  the  final  decree  of  the  court,  or, 
upon  an  appeal,  by  the  appellate  court. 

27. 

[Answer — Requisites  of.] 

In  all  libels  in  causes  of  civil  and  maritime  jurisdiction, 
whether  in  rem  or  in  personam,  the  answer  of  the  defendant 
to  the  allegations  in  the  libel  shall  be  on  oath  or  solemn  af- 
firmation ;  and  the  answer  shall  be  full  and  explicit  and  dis- 
tinct to  each  separate  article  and  separate  allegation  in  the 
libel,  in  the  same  order  as  numbered  in  the  libel,  and  shall 
also  answer  in  like  manner  each  interrogatory  propounded 
at  the  close  of  the  libel.  • 


452  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx.' 

28. 

[Answer — Exceptions    to.] 

The  libellant  may  except  to  the  sufficiency,  or  fullness,  or 
distinctness,  or  relevancy  of  the  answer  to  the  articles  and 
interrogatories  in  the  libel;  and,  if  the  court  shall  adjudge 
the  same  exceptions,  or  any  of  them,  to  be  good  and  valid, 
the  court  shall  order  the  defendant  forthwith,  within  such 
time  as  the  court  shall  direct,  to  answer  the  same,  and  may 
further  order  the  defendant  to  pay  such  costs  as  the  court 
shall  adjudge  reasonable. 

29. 
[Default  on  failure  to  answer.] 
If  the  defendant  shall  omit  or  refuse  to  make  due  answer 
to  the  libel  upon  the  return-day  of  the  process,  or  other  day 
assigned  by  the  court,  the  court  shall  pronounce  him  to  be 
in  contumacy  and  default ;  and  thereupon  the  libel  shall  be 
adjudged  to  be  taken  pro  confesso  against  him,  and  the  court 
shall  proceed  to  hear  the  cause  ex  parte,  and  adjudge  there- 
in as  to  law  and  justice  shall  appertain.  But  the  court  may, 
in  its  discretion,  set  aside  the  default,  and,  upon  the  appli- 
cation of  the  defendant,  admit  him  to  make  answer  to  the 
libel,  at  any  time  before  the  final  hearing  and  decree,  upon 
his  payment  of  all  the  costs  of  the  suit  up  to  the  time  of 
granting  leave  therefor. 

30. 

[Effect  of  failure  to  answer  fully.] 

In  all  cases  where  the  defendant  answers,  but  does  not 
answer  fully  and  explicitly  and  distinctly  to  all  the  matters 
in  any  article  of  the  libel,  and  exception  is  taken  thereto  by 
the  libellant,  and  the  exception  is  allowed,  the  court  may, 
by  attachment,  compel  the  defendant  to  make  further  an- 
swer thereto,  or  may  direct  the  matter  of  the  exception  to 
be  taken  pro  confesso  against  the  defendant,  to  the  full  pur- 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  453 

port  and  effect  of  the  article  to  which  it  purports  to  answer, 
and  as  if  no  answer  had  been  put  in  thereto. 

31. 

[■What  defendant  may  object  to  answering.] 

The  defendant  may  object,  by  his  answer,  to  answer  any 

allegation  or  interrogatory  contained  in  the  libel  which  will 

expose  him  to  any  prosecution  or  punishment  for  crime,  or 

for  any  penalty  or  any  forfeiture  of  his  property  for  any 

penal  offense. 

32. 

[Interrogatories   in   answer.] 

The  defendant  shall  have  a  right  to  require  the  personal 
answer  of  the  libellant  upon  oath  or  solemn  affirmation  to  any 
interrogatories  which  he  may,  at  the  close  of  his  answer, 
propound  to  the  libellant  touching  any  matters  charged  in 
the  libel,  or  touching  any  matter  of  defense  set  up  in  the  an- 
swer, subject  to  the  like  exception  as  to  matters  which  shall 
expose  the  libellant  to  any  prosecution,  or  punishment,  or 
forfeiture,  as  is  provided  in  the  thirty-first  rule.  In  default 
of  due  answer  by  the  libellant  to  such  interrogatories  the 
court  may  adjudge  the  libellant  to  be  in  default,  and  dismiss 
the  libel,  or  may  compel  his  answer  in  the  premises,  by  at- 
tachment, or  take  the  subject-matter  of  the  interrogatory 
pro  confesso  in  favor  of  the  defendant,  as  the  court,  in  its 
discretion,  shall  deem  most  fit  to  promote  public  justice. 

33. 

[How  verification  of  answer  to  interrogatory  obviated.] 

Where  either  the  libellant  or  the  defendant  is  out  of  the 
country,  or  unable,  from  sickness  or  other  casualty,  to  make 
an  answer  to  any  interrogatory  on  oath  or  solemn  affirma- 
tion at  the  proper  time,  the  court  may,  in  its  discretion,  in 
furtherance  of  the  due  administration  of  justice,  disp 
therewith,  or  may  award  a  commission  to  take  the  answer 
of  the  defendant  when  and  as  soon  as  it  may  be  practii 


454  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 

34. 

[How  third  party  may  intervene.] 

If  any  third  person  shall  intervene  in  any  cause  of  ad- 
miralty and  maritime  jurisdiction  in  rem  for  his  own  inter- 
est, and  he  is  entitled,  according  to  the  course  of  admiralty 
proceedings,  to  be  heard  for  his  own  interest  therein,  he 
shall  propound  the  matter  in  suitable  allegations,  to  which, 
if  admitted  by  the  court,  the  other  party  or  parties  in  the  suit 
may  be  required,  by  order  of  the  court,  to  make  due  answer ; 
and  such  further  proceedings  shall  be  had  and  decree  ren- 
dered by  the  court  therein  as  to  law  and  justice  shall  ap- 
pertain. But  every  such  intervenor  shall  be  required,  upon 
filing  his  allegations,  to  give  a  stipulation,  with  sureties,  to 
abide  by  the  final  decree  rendered  in  the  cause,  and  to  pay 
all  such  costs  and  expenses  and  damages  as  shall  be  award- 
ed by  the  court  upon  the  final  decree,  whether  it  is  rendered 
in  the  original  or  appellate  court. 

35. 

[How  stipulation  given  by  intervenor.] 

The  stipulations  required  by  the  last  preceding  rule,  or  on 

appeal,  or  in  any  other  admiralty  or  maritime  proceeding, 

shall  be  given  and  taken  in  the  manner  prescribed  by  rule 

fifth  as  amended. 

36. 

[Exceptions  to  libel.] 

Exceptions  may  be  taken  to  any  libel,  allegation,  or  an- 
swer for  surplusage,  irrelevancy,  impertinence,  or  scandal ; 
and  if,  upon  reference  to  a  master,  the  exception  shall  be 
reported  to  be  so  objectionable,  and  allowed  by  the  court, 
the  matter  shall  be  expunged,  at  the  cost  and  expense  of  the 
party  in  whose  libel  or  answer  the  same  is  found. 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  455 

37. 

[Procedure  against  garnishee.] 

In  cases  of  foreign  attachment,  the  garnishee  shall  be  re- 
quired to  answer  on  oath  or  solemn  affirmation  as  to  the 
debts,  credits,  or  effects  of  the  defendant  in  his  hands,  and 
to  such  interrogatories  touching  the  same  as  may  be  pro- 
pounded by  the  libellant;  and  if  he  shall  refuse  or  neglect 
so  to  do,  the  court  may  award  compulsory  process  in  per- 
sonam against  him.  If  he  admits  any  debts,  credits,  or  ef- 
fects, the  same  shall  be  held  in  his  hands,  liable  to  answer 
the  exigency  of  the  suit. 

38. 

[Bringing  funds  into  court.] 

In  cases  of  mariners'  wages,  or  bottomry,  or  salvage,  or 
other  proceeding  in  rem,  where  freight  or  other  proceeds  of 
property  are  attached  to  or  are  bound  by  the  suit,  which  are 
in  the  hands  or  possession  of  any  person,  the  court  may, 
upon  due  application,  by  petition  of  the  party  interested,  re- 
quire the  party  charged  with  the  possession  thereof  to  ap- 
pear and  show  cause  why  the  same  should  not  be  brought 
into  court  to  answer  the  exigency  of  the  suit ;  and  if  no 
sufficient  cause  be  shown,  the  court  may  order  the  same  to 
be  brought  into  court  to  answer  the  exigency  of  the  suit, 
and  upon  failure  of  the  party  to  comply  with  the  order,  may 
award  an  attachment,  or  other  compulsive  process,  to  com- 
pel obedience  thereto. 

39. 

[Dismissal    for    failure    to   prosecute.] 

If,  in  any  admiralty  suit,  the  libellant  shall  not  appear  and 
prosecute  his  suit,  according  to  the  course  and  orders  of  the 
court,  he  shall  be  deemed  in  default  and  contumacy ;  and 
the  court  may,  upon  the  application  of  the  defendant,  pro- 
nounce the  suit  to  be  deserted,  and  the  same  may  be  dis- 
sed  with  costs. 


456  ADMIRALTY    RULES    OF    PRACTICE.  (AppJx.    ' 

40. 

[Reopening   default   decrees.] 

The  court  may,  in  its  discretion,  upon  the  motion  of  the 

defendant  and  the  payment  of  costs,  rescind  the  decree  in 

any  suit  in  which,  on  account  of  his  contumacy  and  default, 

the  matter  of  the  libel  shall  have  been  decreed  against  him, 

and  grant  a  rehearing  thereof  at  any  time  within  ten  days 

after  the  decree  has  been  entered,  the  defendant  submitting 

to  such  further  orders  and  terms  in  the  premises  as  the  court 

may  direct. 

41. 

[Sales  in  admiralty.] 

All  sales  of  property  under  any  decree  of  admiralty  shall 
be  made  by  the  marshal  or  his  deputy,  or  other  proper  offi- 
cer assigned  by  the  court,  where  the  marshal  is  a  party  in 
interest,  in  pursuance  of  the  orders  of  the  court ;  and  the 
proceeds  thereof,  when  sold,  shall  be  forthwith  paid  into  the 
registry  of  the  court  by  the  officer  making  the  sale,  to  be 
disposed  of  by  the  court  according  to  law. 

42. 

[Funds  in  court  registry.] 

All  moneys  paid  into  the  registry  of  the  court  shall  be  de- 
posited in  some  bank  designated  by  the  court,  and  shall  be 
so  deposited  in  the  name  of  the  court,  and  shall  not  be 
drawn  out,  except  by  a  check  or  checks  signed  by  a  judge 
of  the  court  and  countersigned  by  the  clerk,  stating  on 
whose  account  and  for  whose  use  it  is  drawn,  and  in  what 
suit  and  out  of  what  fund  in  particular  it  is  paid.  The  clerk 
shall  keep  a  regular  book,  containing  a  memorandum  and 
copy  of  all  the  checks  so  drawn  and  the  date  thereof. 

43. 

[Claims  against  proceeds  in  registry.] 

Any  person  having  an  interest  in  any  proceeds  in  the  reg- 
istry of  the  court  shall  have  a  right,  by  petition  and  sum- 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  457 

mary  proceeding,  to  intervene  pro  interesse  suo  for  deliv- 
ery thereof  to  him ;  and  upon  due  notice  to  the  adverse  par- 
ties, if  any,  the  court  shall  and  may  proceed  summarily  to 
hear  and  decide  thereon,  and  to  decree  therein  according  to 
law  and  justice.  And  if  such  petition  or  claim  shall  be  de- 
serted, or,  upon  a  hearing,  be  dismissed,  the  court  may,  in 
its  discretion,  award  costs  against  the  petitioner  in  favor  of 

the  adverse  partv. 

44. 

[Reference  to   commissioners.] 

In  cases  where  the  court  shall  deem  it  expedient  or  nec- 
essary for  the  purposes  of  justice,  the  court  may  refer  any 
matters  arising  in  the  progress  of  the  suit  to  one  or  more 
commissioners,  to  be  appointed  by  the  court,  to  hear  the 
parties  and  make  report  therein.  And  such  commissioner 
or  commissioners  shall  have  and  possess  all  the  powers  in 
the  premises  which  are  usually  given  to  or  exercised  by 
masters  in  chancery  in  reference  to  them,  including  the  pow- 
er to  administer  oaths  to  and  to  examine  the  parties  and 
witnesses  touching  the  premises. 

45. 
[Appeals.] 

All  appeals  from  the  district  to  the  circuit  court  must  be 
made  while  the  court  is  sitting,  or  within  such  other  period 
as  shall  be  designated  by  the  district  court  by  its  general 
rules,  or  by  an  order  specially  made  in  the  particular  suit ; 
or  in  case  no  such  rule  or  order  be  made,  then  within  thirty- 
days  from  the  rendering  of  the  decree. 

46. 
[Right  of  trial  courts  to  make  rules  of  practice.] 

In  all  cases  not  provided  for  by  the  foregoing  rules,  the 
district  and  circuit  courts  are  to  regulate  the  practice  of  the 
said  courts  respectively,  in  such  manner  as  they  shall  deem 
most  expedient  for  the  due  administration  of  justice  in  suits 
in  admiralty. 


458  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 


47. 

[Bail — Imprisonment  for  debt.] 

In  all  suits  in  personam,  where  a  simple  warrant  of  arrest 
issues  and  is  executed,  bail  shall  be  taken  by  the  marshal 
and  the  court  in  those  cases  only  in  which  it  is  required  by 
the  laws  of  the  state  where  an  arrest  is  made  upon  similar 
or  analogous  process  issuing  from  the  state  court. 

And  imprisonment  for  debt,  on  process  issuing  out  of  the 
admiralty  court,  is  abolished,  in  all  cases  where,  by  the  laws 
of  the  state  in  which  the  court  is  held,  imprisonment  for  debt 
has  been,  or  shall  be  hereafter  abolished,  upon  similar  or 
analogous  process  issuing  from  a  state  court. 

48. 
[Answer  in  small  claims.] 

The  twenty-seventh  rule  shall  not  apply  to  cases  where 
the  sum  or  value  in  dispute  does  not  exceed  fifty  dollars, 
exclusive  of  costs,  unless  the  district  court  shall  be  of  opin- 
ion that  the  proceedings  prescribed  by  that  rule  are  neces- 
sary for  the  purposes  of  justice  in  the  case  before  the  court. 

All  rules  and  parts  of  rules  heretofore  adopted,  inconsist- 
ent with  this  order,  are  hereby  repealed  and  annulled. 

49. 
[Further  proof   on  appeal.] 

Further  proof,  taken  in  a  circuit  court  upon  an  admiralty 
appeal,  shall  be  by  deposition,  taken  before  some  commis- 
sioner appointed  by  a  circuit  court,  pursuant  to  the  acts  of 
congress  in  that  behalf,  or  before  some  officer  authorized  to 
take  depositions  by  the  thirtieth  section  of  the  act  of  con- 
gress of  the  24th  of  September,  1789,  upon  an  oral  exami- 
nation and  cross-examination,  unless  the  court  in  which  such 
appeal  shall  be  pending,  or  one  of  the  judges  thereof,  shall, 
upon  motion,  allow  a  commission  to  issue  to  take  such  dep- 
ositions  upon  written  interrogatories   and   cross-interroga- 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  459 

tories.  When  such  deposition  shall  be  taken  by  oral  ex- 
amination, a  notification  from  the  magistrate  before  whom 
it  is  to  be  taken,  or  from  the  clerk  of  the  court  in  which 
such  appeal  shall  be  pending,  to  the  adverse  party,  to  be 
present  at  the  taking  of  the  same,  and  to  put  interrogato- 
ries, if  he  think  fit,  shall  be  served  on  the  adverse  party  or 
his  attorney,  allowing  time  for  their  attendance  after  being 
notified  not  less  than  twenty-four  hours,  and,  in  addition 
thereto,  one  day,  Sundays  exclusive,  for  every  twenty  miles' 
travel ;  provided,  that  the  court  in  which  such  appeal  may  be 
pending,  or  either  of  the  judges  thereof,  may,  upon  motion, 
increase  or  diminish  the  length  of  notice  above  required. 

50. 

[Evidence  on  appeal.] 

When  oral  evidence  shall  be  taken  down  by  the  clerk  of 
the  district  court,  pursuant  to  the  above-mentioned  section 
of  the  act  of  congress,  and  shall  be  transmitted  to  the  cir- 
cuit court,  the  same  may  be  used  in  evidence  on  the  appeal, 
saving  to  each  party  the  right  to  take  the  depositions  of 
the  same  witnesses,  or  either  of  them,  if  he  should  so  elect 

51. 
[Issne  on  new  facts  in  answer.] 
When  the  defendant,  in  his  answer,  alleges  new  facts, 
these  shall  be  considered  as  denied  by  the  libellant,  and  no 
replication,  general  or  special,  shall  be  filed,  unless  allowed 
or  directed  by  the  court  on  proper  cause  shown.  But  with- 
in such  time  after  the  answer  is  filed  as  shall  be  fixed  by 
the  district  court,  either  by  general  rule  or  by  special  order, 
the  libellant  may  amend  his  libel  so  as  to  confess  and  avoid, 
or  explain  or  add  to,  the  new  matters  set  forth  in  the  an- 
swer ;  and  within  such  time  as  may  be  fixed,  in  like  manner, 
the  defendant  shall  answer  such  amendments. 


460  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 

52. 
[Record   on   appeal.] 

The  clerks  of  the  district  courts  shall  make  up  the  records 
to  be  transmitted  to  the  circuit  courts  on  appeals,  so  that 
the  same  shall  contain  the  following: 

1.  The  style  of  the  court. 

2.  The  names  of  the  parties,  setting  forth  the  original 
parties,  and  those  who  have  become  parties  before  the  ap- 
peal, if  any  change  has  taken  place. 

3.  If  bail  was  taken,  or  property  was  attached  or  arrested, 
the  process  of  the  arrest  or  attachment  and  the  service  there- 
of;  all  bail  and  stipulations ;  and,  if  any  sale  has  been  made, 
the  orders,  warrants,  and  reports  relating  thereto. 

4.  The  libel,  with  exhibits  annexed  thereto. 

5.  The  pleadings  of  the  defendant,  with  the  exhibits  an- 
nexed thereto. 

6.  The  testimony  on  the  part  of  the  libellant,  and  any  ex- 
hibits not  annexed  to  the  libel. 

7.  The  testimony  on  the  part  of  the  defendant,  and  any 
exhibits  not  annexed  to  his  pleadings. 

8.  Any  order  of  the  court  to  which  exception  was  made. 

9.  Any  report  of  an  assessor  or  assessors,  if  excepted  to, 
with  the  orders  of  the  court  respecting  the  same,  and  the 
exceptions  to  the  report.  If  the  report  was  not  excepted 
to,  only  the  fact  that  a  reference  was  made,  and  so  much  of 
the  report  as  shows  what  results  were  arrived  at  by  the  as- 
sessor, are  to  be  stated. 

10.  The  final  decree. 

11.  The  prayer  for  an  appeal,  and  the  action  of  the  dis- 
trict court  thereon ;  and  no  reasons  of  appeal  shall  be  filed 
or  inserted  in  the  transcript. 

The  following  shall  be  omitted: 

1.  The  continuances. 

2.  All  motions,  rules,  and  orders  not  excepted  to  which 
are  merely  preparatory  for  trial. 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  461 

3.  The  commissions  to  take  depositions,  notices  therefor, 
their  captions,  and  certificates  of  their  being  sworn  to,  un- 
less some  exception  to  a  deposition  in  the  district  court  was 
founded  on  some  one  or  more  of  these ;  in  which  case,  so 
much  of  either  of  them  as  may  be  involved  in  the  exception 
shall  be  set  out.  In  all  other  cases  it  shall  be  sufficient  to 
give  the  name  of  the  witness  and  to  copy  the  interrogatories 
and  answers,  and  to  state  the  name  of  the  commissioner,  and 
the  place  where  and  the  date  when  the  deposition  was  sworn 
to ;  and,  in  copying  all  depositions  taken  on  interrogatories, 
the  answer  shall  be  inserted  immediately  following  the  ques- 
tion. 

2.  The  clerk  of  the  district  court  shall  page  the  copy  of 
the  record  thus  made  up,  and  shall  make  an  index  thereto, 
and  he  shall  certify  the  entire  document,  at  the  end  thereof, 
under  the  seal  of  the  court,  to  be  a  transcript  of  the  record 
of  the  district  court  in  the  cause  named  at  the  beginning  of 
the  copy  made  up  pursuant  to  this  rule ;  and  no  other  cer- 
tificate of  the  record  shall  be  needful  or  inserted. 

3.  Hereafter,  in  making  up  the  record  to  be  transmitted  to 
the  circuit  clerk  on  appeal,  the  clerk  of  the  district  court  shall 
omit  therefrom  any  of  the  pleading,  testimony,  or  exhibits 
which  the  parties  by  their  proctors  shall  by  written  stipula- 
tion agree  may  be  omitted;  and  such  stipulation  shall  be 
certified  up  with  the  record. 

53. 

[Security   on  cross-libel.] 

Whenever  a  cross-libel  is  filed  upon  any  counter-claim, 
arising  out  of  the  same  cause  of  action  for  which  the  i 
nal  libel  was  filed,  the  respondents  in  the  cross-libel  shall 
give  security  in  the  usual  amount  and  form,  to  respond  in 
damages,  as  claimed  in  said  cross-libel,  unless  the  court,  on 
cause  shown,  shall  otherwise  direct;  and  all  proceedings  up- 
on the  original  libel  shall  be  stayed  until  such  security  shall 
be  given. 


4G2  ADMIRALTY    RULES    OF    PRACTICE.  (Appdx. 

54. 

[Limitation    of    liability— How    claimed.! 

When  any  ship  or  vessel  shall  be  libeled,  or  the  owner  or 
owners  thereof  shall  be  sued,  for  any  embezzlement,  loss,  or 
destruction  by  the  master,  officers,  mariners,  passengers,  or 
any  other  person  or  persons,  of  any  property,  goods,  or  mer- 
chandise shipped  or  put  on  board  of  such  ship  or  vessel,  or 
for  any  loss,  damage,  or  injury  by  collision,  or  for  any  act, 
matter,  or  thing,  loss,  damage,  or  forfeiture  done,  occa- 
sioned, or  incurred,  without  the  privity  or  knowledge  of  such 
owner  or  owners,  and  he  or  they  shall  desire  to  claim  the 
benefit  of  limitation  of  liability  provided  for  in  the  third  and 
fourth  sections  of  the  act  of  March  3,  1851,  entitled  "An  act 
to  limit  the  liability  of  shipowners  and  for  other  purposes," 
now  embodied  in  sections  4283  to  4285  of  the  Revised  Stat- 
utes, the  said  owner  or  owners  shall  and  may  file  a  libel  or 
petition  in  the  proper  district  court  of  the  United  States,  as 
hereinafter  specified,  setting  forth  the  facts  and  circumstan- 
ces on  which  such  limitation  of  liability  is  claimed,  and  pray- 
ing proper  relief  in  that  behalf;  and  thereupon  said  court, 
having  caused  due  appraisement  to  be  had  of  the  amount  or 
value  of  the  interest  of  said  owner  or  owners,  respectively, 
in  such  ship  or  vessel,  and  her  freight,  for  the  voyage,  shall 
make  an  order  for  the  payment  of  the  same  into  court,  or  for 
the  giving  of  a  stipulation,  with  sureties,  for  payment  there- 
of into  court  whenever  the  same  shall  be  ordered ;  or,  if  the 
said  owner  or  owners  shall  so  elect,  the  said  court  shall,  with- 
out such  appraisement,  make  an  order  for  the  transfer  by 
him  or  them  of  his  or  their  interest  in  such  vessel  and  freight, 
to  a  trustee  to  be  appointed  by  the  court  under  the  fourth 
section  of  said  act;  and,  upon  compliance  with  such  order, 
the  said  court  shall  issue  a  monition  against  all  persons 
claiming  damages  for  any  such  embezzlement,  loss,  destruc- 
tion, damage,  or  injury,  citing  them  to  appear  before  the  said 
court  and  make  due  proof  of  their  respective  claims  at  or 


Appdx.)  ADMIRALTY    RULES    OF    PRACTICE.  463 

before  a  certain  time  to  be  named  in  said  writ,  not  less  than 
three  months  from  the  issuing  of  the  same ;  and  public  no- 
tice of  such  monition  shall  be  given  as  in  other  cases,  and 
such  further  notice  served  through  the  post-office,  or  other- 
wise, as  the  court,  in  its  discretion  may  direct ;  and  the  said 
court  shall  also,  on  the  application  of  the  said  owner  or  own- 
ers, make  an  order  to  restrain  the  further  prosecution  of  all 
and  any  suit  or  suits  against  said  owner  or  owners  in  respect 
of  any  such  claim  or  claims. 

55. 

[Proof  of  claims  in  limited  liability  procedure.] 

Proof  of  all  claims  which  shall  be  presented  in  pursuance 
of  said  monition  shall  be  made  before  a  commissioner,  to  be 
designated  by  the  court,  subject  to  the  right  of  any  person 
interested  to  question  or  controvert  the  same ;  and  upon  the 
completion  of  said  proofs,  the  commissioner  shall  make  re- 
port of  the  claims  so  proven,  and  upon  confirmation  of  said 
report,  after  hearing  any  exceptions  thereto,  the  moneys  paid 
or  secured  to  be  paid  into  court  as  aforesaid,  or  the  proceeds 
of  said  ship  or  vessel  and  freight  (after  payment  of  costs  and 
expense),  shall  be  divided  pro  rata  amongst  the  several  claim- 
ants in  proportion  to  the  amount  of  their  respective  claims, 
duly  proved  and  confirmed  as  aforesaid,  saving,  however,  to 
all  parties  any  priority  to  which  they  may  be  legally  en- 
titled. 

56. 

[Defense   to  claims  in   limited  liability   procedure.] 

In  the  proceedings  aforesaid,  the  said  owner  or  owners 
shall  be  at  liberty  to  contest  his  or  their  liability,  or  the  lia- 
bility of  said  ship  or  vessel  for  said  embezzlement,  loss,  de- 
struction, damage,  or  injury  (independently  of  the  limitation 
of  liability  claimed  under  said  act),  provided  that,  in  his  or 
their  libel  or  petition,  he  or  they  shall  state  the  facts  and  cir- 
cumstances by  reason  of  which  exemption  from  liability  is 
claimed;    and  any  person  or  persons  claiming  damages  as 


464  ADMIRALTY    HULKS    OF    PRACTICE.  (Appdx.    ^ 

aforesaid,  and  who  shall  have  presented  his  or  their  claim  to 
the  commissioner  under  oath,  shall  and  may  answer  such 
libel  or  petition,  and  contest  the  right  of  the  owner  or  own- 
ers of  said  ship  or  vessel,  either  to  an  exemption  from  lia- 
bility, or  to  a  limitation  of  liability  under  the  said  act  of  con- 
gress, or  both. 
*  57. 

[Courts  having  cognizance  of  limited  liability  procedure.] 

The  said  libel  or  petition  shall  be  filed  and  the  said  pro- 
ceedings had  in  any  district  court  of  the  United  States  in 
which  said  ship  or  vessel  may  be  libeled  to  answer  for  any 
such  embezzlement,  loss,  destruction,  damage,  or  injury ;  or, 
if  the  said  ship  or  vessel  be  not  libeled,  then  in  the  district 
court  for  any  district  in  which  the  said  owner  or  owners  may 
be  sued  in  that  behalf.  When  the  said  ship  or  vessel  has 
not  been  libeled  to  answer  the  matters  aforesaid,  and  suit  has 
not  been  commenced  against  the  said  owner  or  owners,  or 
has  been  commenced  in  a  district  other  than  that  in  which 
the  said  ship  or  vessel  may  be,  the  said  proceedings  may  be 
had  in  the  district  court  of  the  district  in  which  the  said  ship 
or  vessel  may  be,  and  where  it  may  be  subject  to  the  control 
of  such  court  for  the  purposes  of  the  case  as  hereinbefore 
provided.  If  the  ship  have  already  been  libeled  and  sold,  the 
proceeds  shall  represent  the  same  for  the  purposes  of  these 

rules. 

58. 

[Appeals  in.] 

All  the  preceding  rules  and  regulations  for  proceeding  in 
cases  where  the  owner  or  owners  of  a  ship  or  vessel  shall 
desire  to  claim  the  benefit  of  limitation  of  liability  provided 
for  in  the  act  of  congress  in  that  behalf,  shall  apply  to  the 
circuit  courts  of  the  United  States  where  such  cases  are  or 
shall  be  pending  in  said  courts  upon  appeal  from  the  district 
courts. 


Appdx.)  ADMIRALTY    ROLES    OF    PRACTICE.  4G5 

59. 

might  to  bring  in  party  jointly  liable  in  collision  case.] 
In  a  suit  for  damage  by  collision,  if  the  claimant  of  any 
vessel  proceeded  against,  or  any  respondent  proceeded 
against  in  personam,  shall,  by  petition,  on  oath,  presented 
before  or  at  the  time  of  answering  the  libel,  or  within  such 
further  time  as  the  court  may  allow,  and  containing  suitable 
allegations  showing  fault  or  negligence  in  any  other  vessel 
contributing  to  the  same  collision,  and  the  particulars  there- 
of, and  that  such  other  vessel  or  any  other  party  ought  to  be 
proceeded  against  in  the  same  suit  for  such  damage,  pray 
that  process  be  issued  against  such  vessel  or  party  to  that 
end,  such  process  may  be  issued,  and,  if  duly  served,  such 
suit  shall  proceed  as  if  such  vessel  or  party  had  been  origi- 
nally proceeded  against ;  the  other  parties  in  the  suit  shall 
answer  the  petition ;  the  claimant  of  such  vessel  or  such  new 
party  shall  answer  the  libel;  and  such  further  proceedings 
shall  be  had  and  decree  rendered  by  the  court  in  the  suit  as 
to  law  and  justice  shall  appertain.  But  every  such  petition- 
er shall,  upon  filing  his  petition,  give  a  stipulation,  with  suffi- 
cient sureties,  to  pay  to  the  libellant  and  to  any  claimant  or 
new  party  brought  in  by  virtue  of  such  process,  all  such  costs, 
damages,  and  expenses  as  shall  be  awarded  against  the  peti- 
tioner by  the  court  upon  the  final  decree,  whether  rendered 
in  the  original  or  appellate  court ;  and  any  such  claimant  or 
new  party  shall  give  the  same  bonds  or  stipulations  which 
are  required  in  like  cases  from  parties  brought  in  under  pro- 
cess issued  on  the  prayer  of  a  libellant. 

HUGHES.AD.— 30 


TABLE 


OF 


LEADING  AND  ILLUSTRATIVE  CASES 

TOPICALLY  ARRANGED. 


ADMIRALTY  JURISDICTION. 

1.  Extent  under  constitution.  Page 

The  Lottawanna,  21  Wall.  558 7,  101-103,  205 

The  Scotland,  105  U.  S.  24 205,  311 

2.  Waters  included  under. 

The  Genesee  Chief,  12  How.  413 10 

The  Daniel  Ball,  10  Wall.  557 10 

3.  Torts  consummate  on  water. 

The  Plymouth,  3  Wall.  20 181 

Ex  parte  Phenix  Ins.  Co.,  118  U.  S.  610.  7  Sup. 

Ct.  25   206,  311 

The  John  C.  Sweeny,  55  Fed.  540 170 

4.  Craft  or  structures  subject  to. 

In  re  Rock  Island  Bridge,  6  Wall.  213 180 

Atlee  v.  Packet  Co.,  21  Wall.  389 183 

Cope  v.  Dry-Dock  Co.,  119  U.  S.  625,  7  Sup.  Ct. 

336    13 

Ex  parte  Boyer,  109  U.  S.  629,  3  Sup.  Ct.  434 170 

AFFREIGHTMENT  AND  CHARTER  PARTY. 

1.  Bill  (if  lading. 

Invalidity  of  stipulations  against  negligence. 

New  York,  C.  &  H.  R.  Co.  v.  Lockwood,  17  Wall. 

357  153 

Perils  of  the  sea. 

The  <:.  R.  Booth,  171  U.  S.  450,  19  Sup.  Ct.  9 L54 

HUGHKS.AD.  (lGTj 


46S  LEADING    AND    ILLUSTRATIVE    CASES. 

AFFREIGHTMENT  AND  CHARTER  TARTY— Cont'd. 

2.  Seaworthiness.  Pase 

Steel  v.  Steamship  Co.,  3  App.  Cas.  72 57, 160 

The  Caledonia,  157  U.  S.  124,  15  Sup.  Ot.  537 

46,  146,  160 
S.  Freight,  lien  for  and  when  payable. 

Bags  of  Linseed,  1  Black,  108 147 

Brittan  v.  Barnaby,  21  How.  527 147 

4.  Conditions  in  and  construction  of  charter  parties. 

Raymond  v.  Tyson,  17  How.  53 157 

Lowber  v.  Bangs,  2  Wall.  728 157,  161 

5.  Deviation. 

Hostetter  v.  Park,  137  U.  S.  30,  11  Sup.  Ct.  1 146 

6.  Cesser  clause. 

Kish  v.  Cory,  L.  R.  10  Q.  B.  553 165 

7.  Relative  remedies  of  ship  and  cargo. 

The  Rebecca,  Fed.  Cas.  No.  11,019 147,  303 

BOTTOMRY. 

Conditions  under  which  bond  may  be  given. 

The  Grapeshot,  9  Wall.  129 '. 87,  90,  97 

The  Julia  Blake,  107  U.  S.  418,  25  Sup.  Ct.  692 91 

COLLISION. 

1.  Dividing  line  between  international  and  inland  rules. 

The  Delaware,  161  U.  S.  459,  16  Sup.  Ct.  516 

169,  213 

2.  Fog. 

(a)  What  constitutes. 

The  Monticello,  Fed.  Cas.  No.  9,739. 224 

(b)  Speed  of  steamers  in. 

The  Pennsylvania,  19  Wall.  125 228 

The  Martello,  153  U.  S.  64,  14  Sup.  Ct.  723 223,  228 

The  Umbria,  166  U.  S.  404,  17  Sup.  Ct.  610 227,  228 

(c)  Speed  of  sail  vessels  in. 

The  Zadok,  9  Prob.  Div.  116 227,  228 

3.  Port  helm  rule. 

The  Victory,  168  U.  S.  410,  IS  Sup.  Ct.  149 250 

4.  Crossing  rule — Keeping  course  and  speed. 

The  Britannia,  153  U.  S.  130,  14  Sup.  Ct.  795.  .245,  246 

The  Breakwater,  155  U.  S.  252,  15  Sup.  Ct.  99 

241,  245 

5.  Steam  and  sail. 

The  Lucille,  15  Wall.  676 243 


LEADING    AND    ILLUSTRATIVE    CASES.  469 

COLLISION— Cont'd. 

6.  Narrow  channel  rule.  Page 

The  Rhondda,  8  App.  Cas.  549 251.  253 

The  Victory,  168  U.  S.  410.  18  Sup.  Ct.  149 250 

7.  Lookout. 

The  Manhasset,  34  Fed.  40S 258 

8.  Inevitable  accident. 

The  Grace  Girdler,  7  Wall.  196 271 

The  Marpesia,  L.  R.  4  P.  C.  212 271 

9.  Error  in  extremis. 

The  Lucille,  15  Wall.  676 243,  291 

The  Elizabeth  Jones,  112  U.  S.  514,  5  Sup.  Ct.  468  291 

10.  The  "stand-by"  act. 

The  Hercules.  80  Fed.  99S 263 

11.  Law  applicable  in  controversies  between  foreigners. 

The  Belgenland,  114  U.  S.  355,  5  Sup.  Ct.  860 25 

12.  Remedies — Procedure  against  one  or   both  offenders,   and 

methods  of  adjusting  equities  between. 

The  Hudson,  15  Fed.  162 2S1,  283 

The  Atlas,  93  U.  S.  302 278 

13.  Damages. 

(a)  Measure  of. 

The  Baltimore,  8  Wall.  377 2S6,  289 

The  Conqueror,  166  U.  S.  110,  17  Sup.  Ct.  510 288 

(b)  Division  of  when  both  in  fault. 

The  Woodrop-Sims,  2  Dod.  S3 Ji;:» 

Cayzer  v.  Carron  Co.,  9  App.  Cas.  873 273 

The  Catharine,  17  How.  170 27  I 

The  North  Star,  106  U.  S.  17,  1  Sup.  Ct.  41 

274,  275,  284 
DAMAGES. 

Division  of  in  other  than  collision  cases. 

The  Max  Morris,  137  U.  S.  1,  11  Sup.  Ct.  29.  .193,  208 

DEATH  INJURIES. 

Whether  right  of  action  for  in  admiralty. 

The  Vera  Cruz,  10  App.  Cas.  59 190,  -<  © 

The  Harrisburg,  119  U.  S.  199,  7  Sup.  Ct.  140 2im) 

Butler  v.  Steamship  Co.,  130  U.  S.  527.  :>  Sup.  Ct. 

612   206,  207,  812 

The  Corsair,  145  U.  S.  335,  L2  Sup.  Ct.  049 

201,  209 


470  LEADING    AND    ILLUSTRATIVE    CASES. 

GENERAL,  AVERAGE. 

Master's  powers.  Pag* 

The  Star  of  Hope,  9  Wall.  203 41,  42 

Ralli  v.  Troop,  157  U.  S.  386,  15  Sup.  Ot.  657 44 

HARTER  ACT. 

1.  Applies  only  between  ship  and  shipper. 

The  Delaware,  161  U.  S.  459,  16  Sup.  Ct.  516 169 

2.  Stipulations  against  unseaworthiness. 

The  Carib  Prince,  170  U.  S.  655,  18  Sup.  Ct.  753. .  177 

LIMITATION  OP  LIABILITY. 

1.  When,  where,  and  how  availed  of. 

Norwich  &  N.  Y.  Transp.  Co.  v.  Wright,  13  Wall. 

104   205,  304,  312 

The  Benefactor,  103  U.  S.  239 329 

Providence  &  N.  Y.  S.  S.  Co.  v.  Mfg.  Co.,  109  U. 

S.  578,  3  Sup.  Ct.  379 308,  330 

The  Scotland,  105  U.  S.  24 205,  311,  321,  329 

2.  Voyage  as  unit. 

The  City  of  Norwich,  118  U.  S.  468,  6  Sup.  Ct. 
1150    320 

3.  Congressional  power  of  legislation  over. 

Butler  v.  Steamship  Co.,  130  U.  S.  527,  9  Sup.  Ct. 

612    206,  207 

Garnett,  In  re,  141  U.  S.  1,  11  Sup.  a.  840 10 

4.  Privity  or  knowledge  of  vessel  owner. 

The  Colima,  82  Fed.  665 174,  313,  316 

MARINE  INSURANCE. 

1.  Jurisdiction  of  admiralty. 

De  Lovio  v.  Boit,  Fed.  Cas.  No.  3,776 17,  48 

Andrews  v.  Insurance  Co.,  Fed.  Cas.  No.  374.  .20,  48 

2.  Beginning  of  risk. 

The  Liscard,  56  Fed.  44 68 

3.  End  of  risk. 

Lidgett  v.  Secretan,  L.  R.  5  C  P.  190 69 

4.  Insurable  interest. 

Hooper  v.  Robinson,  98  U.  S.  528 49 

5.  Policy  valuation. 

Barker  v.  Janson.  L.  R.  3  C.  P.  303 82 

6.  Perils  of  the  sea. 

General  Mut.  Ins.  Co.  v.  Sherwood,  14  How.  357. .     71 


LEADING    AND    ILLUSTRATIVE    CASES.  471 

MARINE   INSURANCE— Cont'd. 

7.  Barratry.  Page 

Patapsco  Ins.  Co.  v.  Coulter,  3  Pet.  222 73 

8.  All  other  perils. 

Thames  &  M.  Marine  Ins.  Co.  v.  Hamilton,  12  App. 
Cas.   4S4    74 

9.  Proximate  cause. 

Patapsco  Ins.  Co.  v.  Coulter,  3  Pet.  222 73 

Ionides  v.  Insurance  Co.,  14  C.  B.  N.  S.  259 75 

Howard  Fire  Ins.  Co.   v.  Transportation  Co.,   12 
Wall.  194   77 

10.  Misrepresentation  or  concealment. 

Ionides  v.  Pender,  L.  R.  9  Q.  B.  531 55 

Sun  Mut.  Ins.  Co.  v.  Insurance  Co.,  107  U.  S.  485, 
1  Sup.  Ct.  582 53 

11.  Illicit  traffic. 

Andrews  v.  Insurance  Co.,  Fed.  Cas.  No.  374. . .  .63,  65 

12.  Unseaworthiness. 

Richelieu  &  O.  Nav.  Co.  v.  Insuiance  Co.,  136  U. 
S.  408,  10  Sup.  Ct.  934 56 

13.  Deviation. 

Hearne  v.  Insurance  Co.,  20  Wall.  4SS 60 

Scaramanga  v.  Stamp,  4  C.  P.  Div.  316;   5  Id.  295 

61,  161 
MARITIME  LIENS. 

1.  Rank  as  affected  by  nature  of  and  suit  brought. 

The  City  of  Tawas,  3  Fed.  170 332,  346,  351 

2.  Relative  rank  of  bottomry  and  advances  for  wages. 

The  Dora,  34  Fed.  348 335 

3.  Relative  rank  of  salvage,  wages,  and  supplies. 

The  Fort  Wayne,  Fed.  Cas.  No.  3,012 335,  347 

4.  Relative  rank  of  contract  claims  of  different  dates. 

The  Omer,  Fed.  Cas.  No.  10,510 345 

6.  Relative  rank  of  contract  and  tort  claims. 

The  Elin,  8  Prob.  Div.  39 344 

The  Aline,  1  W.  Rob.  Adm.  112 340.  343,  348 

The  John  G.  Stevens,  170  U.  S.  113,  18  Sup.  Ct  5  1 1 

341,  343,  350 
6.  Relative  rank  as  between  two  toils. 

The  Frank  (i.  Fowler  (D.  C.)  8  Fed.  331;   (C.  Cl  17 
Fed.   653    


472  LEADING    AND    ILLUSTRATIVE    CASES. 

MARITIME  TORTS. 

1.  Crew.  Page 

Olsen  v.  Navigation  Co.,  96  Fed.  109;    104  Fed.  574  184 

2.  Licensees. 

Leathers  v.  Blessing,  105  U.  S.  626 187 

8.  Persons  not  in  privity. 

Caledonian  Ry.  Co.  v.  Mulholland  (1898)  App.  Cas. 
216    191 

The  Indrani,  101  Fed.  596 188,  189 

4.  Imputed  negligence. 

Little  v.  Hackett,  116  U.  S.  366,  6  Sup.  a.  391. .. .  192 

OWNERS  OF  VESSELS. 

1.  Recordation  of  mortgages. 

White's  Bank  v.  Smith,  7  Wall.  646 293 

2.  Power  to  bind  each  other. 

The  Larch,  Fed.   Cas.  No.   8,085 295 

Frazer  v.  Cuthbertson,  6  Q.  B.  Div.  93 296,  300 

Spedden  v.  Koenig,  78  Fed.  504 294,  300 

3.  Right  of  part  owner  to  libel. 

The  Charles  Hemje,  Fed.  Cas.  No.  11,047a 295 

PILOTAGE. 

1.  Validity  of  state  laws. 

Cooley  v.  Board,  12  How.  299 29,  30 

2.  Skill  required  of,  and  liability  for  negligence. 

Atlee  v.  Packet  Co.,  21  Wall.  389 31 

Sideracudi  v.  Mapes,  3  Fed.  873 33,  34,  37 

Wilson  v.  Association,  55  Fed.  1000;    57  Fed.  227 

33,  37 
PLEADING  AND  PRACTICE. 

1.  Amendments. 

The  Sarah  Ann,  Fed.  Cas.  No.  12,342 365 

2.  Titles  cognizable. 

The  Eclipse,  135  U.  S.  599,  10  Sup.  Ct.  873..  ..298,  354 

3.  Foreign  attachments. 

Louisville  Underwriters,  In  re,  134  U.  S.  48S,  10 
Sup.  Ct.  587  364 

4.  Comity  between  courts. 

Taylor  v.  Carryl,  20  How.  583 360 

5.  Reviewing  or  reopening  decrees. 

The  New  England,  Fed.  Cas.  No.  10.151 361 

Snow  v.  Edwards,  Fed.  Cas.  No.  13,145 361 

6.  Review  of  facts  on  appeal. 

The  Ariadne,  13  Wall.  475 370 


LEADING    AND    ILLUSTRATIVE    CASES.  473 

SALVAGE. 

1.  Towage  of  disabled  steamer.  Pase 

The  Akaba,  54  Fed.  197 I-7 

2.  Rescue  from  fire. 

The  Blackwall,  10  Wall.  1 12S 

3.  Completeness  of  service  necessary. 

The  Killeena,  6  Prob.  Div.   193 132 

4.  Allowance  for  salvors'  losses  and  expenses. 

The  City  of  Chester,  9  Prob.  Div.  202-204 139 

The  De  Bay,  8  App.  Cas.  559 134 

5.  Salvage  service  by  passenger. 

The  Branston,  2  Hagg.  Adm.  3 132 

6.  Professional  salvors. 

The  Glengyle  (1S98)   Prob.  Div.  97;    (1S0S)   App. 
Cas.  519 136 

7.  Derelicts. 

The  True  Blue,  L.  R.  1  P.  0.  250 138 

8.  Misconduct  of  salvor  as  reducing  award. 

The  Clandeboye,  70  Fed.  031 139 

9.  Contracts  for,  how  far  binding. 

The  Elfrida,  172  U.  S.  186,  19  Sup.  Ct.  14G 141 

10.  Freight  money,  how  made  to  contribute. 

The  Norma,  Lush.  124 143 

SEAMEN. 

Peculiar  character  of  contracts  and  how  enforceable. 

Robertson  v.  Baldwin,  165  U.  S.  275,  17  Sup.  Ct.  320    24 

STEVEDORES. 

1.  Lien  of  when  employed  by  vessel  ov,  ner. 

The  George  T.  Kemp,  Fed.  Cas.  No.  5,341 114 

2.  Necessity  of  contract  with  sbip. 

The  Seguranca  (D.  C.)  58  Fed.  908 115 

SUPPLIES  AND  REPAIRS. 

1.  Presumption  in  case  of  foreign  vessels. 

The  Grapeshot,  9  Wall.   129 87,  90.  97 

The  Kalorama,  10  Wall.  204 92-94 

2.  Charterer's  power  to  bind  ship. 

The  Valencia,  1G5  U.  S.  204.  17  Sup.  Ct.  323 92,  93 

3.  Liens  on  domestic  vessels. 

The  Lottawanna,  Ji  WaU.  5oS i«>' 

The  General  Smith.  4  Wheat   143 98,  102 


474  LEADING    AND    ILLUSTRATIVE    CASES. 

SUPPLIES  AND  REPAIRS— Cont'd. 

4.  Power  of  state  statute  to  give  lien  and  on  what  vessels.      Page 

The  J.  E.  Rumbell,  148  U.  S.  1,  13  Sup.  Ct.  498 

27,  94,  103 

The  Chusan,  Fed.  Cas.  No.  2,717 95,  109,  111 

TOWAGE. 

1.  Relative  duties  of  tug  and  tow  as  to  navigation  and  relative 

liabilities  to  injured  third  party. 

Dutton  v.  The  Express,  Fed.  Cas.  No.  4,209 122 

Sturgis  v.  Boyer,  24  How.  110 119 

2.  Skill  required  of  towboat. 

Eastern  Transp.  Line  v.  Hope,  95  U.  S,  297 123 


TABLE  OF  CASES  CITED. 


[THE  figures   refer  to  pages.] 


Abbie  C.  Stubbs,  The,  327. 

Ada  A.  Kennedy,  The,  235. 

Adams  v.  Railroad  Co.,  210. 

Adriatic,  The,  246. 

Aina,  The,  33S,  351. 

Ajum  v.  Insurance  Co.,  58. 

Akaba,  The,  127,  138. 

Akerblom  v.  Price,  131,  141. 

Alabama,  The,  278. 

Alamo,  The,  127. 

Alaska,  The,  143,  201. 

Albany,  The,  370. 

Albert  Dumois,  The,  206,  253,  257, 

289,  312. 
Albion,  The,  129. 
Alexandria,  The,  37. 
Algiers,  The,  222. 
Alhambra,  The,  162. 
Aline,  The,  340,  343,  348,  349. 
Allen  v.  The  Canada,  128. 

v.  Mackay,  327. 
Alvira,  The,  103. 
Alzena,  The,  37. 
Amelie,  The,  293. 
America,  The,  122. 
American  Steamboat  Co.  v.  Chase, 

a  i2, 

American  Sugar  Refining  Co.  v. 

Mad. luck,   152. 

Amerique,  The,  138. 
Amos  D.  Carver,  The,  313. 
Anisic],  The,  114. 
Amsterdam,  The,  312. 
Anchoria,  The,  357. 
Andalusia,  The,  140. 
Anderson  v.  Morice,  58. 
Andrews  v.  insurance  Co.,  20,  48, 
63,  86. 

HUGHES, AD.  (4 


Anglo-Argentine  Live-Stock  & 
Produce  Agency  v.  Shipping 
Co.,  42. 

Anna,  The,  127. 

Anne,  The,  124. 

Annie  Faxon,  The,  309,  318. 

Arcturus,  The,  346. 

A.  R.  Dunlap.  The,  96. 

Argentino,  The,  2SS. 

Argus,  The,  282. 

Ariadne,  The,  370. 

Arkansas,  The,  179. 

Armstrong  v.  Beadle,  208,  209. 

Armstrong  Co.  v.  Clarion  Co.,  2S3. 

A.  R.  Robinson,  The.  123. 

Ashbourne,  The,  139. 

Athenian,  The,  335. 

Atlantic  &  D.  R.  Co.  v.  Iron- 
monger, 192. 

Atlas,  The,  278. 

Atlee  v.  Packet  Co.,  31,  183. 

Auchanardeh,  The,  189. 

Aurania,  The,  241. 

A.  \Y.  Thompson,  The,  210. 

B 

Bags  of  Linseed,  1 17. 

Pain  v.  Transportation  Co.,  181. 

I  laker  v.  Bolton,    L95. 

Ball  v.  Berwind,  183,  266. 

v.  Trenholm,  180. 
Balmoral  Steamship  Co.  v.  Mar- 
ten, 83. 
Baltimore,  The,  286,  289. 
Barker  v.  Jansou,  78,  82. 
Barnard  v.  Adams.  40. 
Batchelder  v.  insurance  Co.,  58. 
Bay  State,  The,  215. 
Beaconsfield,  The,  867. 
75) 


476 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Bearse  v.  Ropes,  149. 
Belgenland,  The,  25,  258. 
Belle,  The,  124. 
Belle  of  the  Coast,  The,  98. 
Bello  Corruiies,  The,  140. 
Belvidere,  The,  25. 
Benares,  The,  254. 
Bendo,  The,  259,  260. 
Benefactor,  The,  329. 
Benlarig,  The,  159. 
Berkshire,  The,  252. 
Bernina,  The,  192. 
Berthold  v.  Goldsmith,  35. 
Beryl,  The,  231. 
Besse  v.  Hecht,  300. 
Betsina,  The,  296,  297. 
Biays  v.  Insurance  Co.,  79. 
Bibb's  Adm'r  v.  Railroad  Co.,  190. 
Big  Jim,  The,  14. 
Blackwall,  The,  128,  357 
Blaireau.  The,  126. 
Blue  Jacket,  The,  259,  260,  291. 
Bob  Connell,  The,  117. 
Bogart  v.  The  John  Jay,  18. 
Bold  Buccleugh,  The,  342,  350. 
Bordentown,  The,  322. 
Boston,  The,  139. 
v.  Beers,  106. 
Botany  Worsted  Mills  v.   Knott, 

176. 
Boutin  v.  Rudd,  200. 
Boyer,  Ex  parte,  12,  179. 

Boyne,  The,  128. 

Brackett  v.  Hercules,  366. 

Bradlie  v.  Insurance  Co.,  81. 

Bramble  v.  Culmer,  156. 

Brannigan  v.  Mining  Co.,  210. 

Branston,  The,  132. 

Breakwater,  The,  241,  245,  256. 

Britannia,  The,  245,  246. 

British  King,  The,  176. 

Brittan  v.  Barnaby,  145,  147,  152. 

Brodie  v.  Howard,  296. 

Brown  v.  Johnson,  163. 

Bryan  v.  U.  S.,  126. 

Buck  v.  Insurance  Co.,  49,  52. 

Bulkley  v.  Cotton  Co.,  147,  152. 

Bullard  v.  Insurance  Co.,  57,  58. 


Butler  v.  Steamship  Co.,  206,  207, 

312. 
Butterworth  v.  The  Washington, 

12S. 
Byron,  The,  140. 
Bywell  Castle,  The,  291. 


Cairo,  The,  128. 
Calbreath  v.  Gracy,  64. 
Calderon  v.  Steamship  Co.,  174. 
Caledonia,  The,  46,  146,  160. 
Caledonian  R.  Co.  v.  Mulholland, 

191. 
Camanche,  The,  127. 
Camellia,  The,  133. 
Oandee  v.  6S  Bales  of  Cotton,  132. 
Canton  Ins.   Office  v.  Woodside, 

49. 
Cape  Fear  Towing  &  Transp.  Co. 

v.  Pearsall,  142,  360. 
Captain  Weber,  The,  370. 
Cargo  of  Fertilizer,  146. 
Cargo  of  The  Ulysses,  132. 
Carib  Prince,  The,  177. 
Carlson  v.  Ass'n,  186. 
Caro,  The,  260. 
Carroll,  The,  291. 
Cassius,  The,  147. 
Catharine,  The,  274. 
Catskill,  The,  330. 
Cayuga,  The,  241,  288. 
Cayzer  v.  Carron  Co.,  273. 
Cephalonia,  The,  210. 
Certain  Logs  of  Mahogany,  146. 
C.  F.  Bielman,  The,  130. 
Chamberlain  v.  Chandler,  192. 
Chappell  v.  Bradshaw,  309. 
Charles  Charter,  The,  90. 
Charles  F.  Perry,  The.  19. 
Charles  Hemje,  The,  295. 
Charles  Morgan,  The,  209. 
Charlotte,  The,  129. 
Chatfield,  The,  127. 
Chatham,  The,  244. 
Chattahoochee,  The,  172,  275. 
Cheerful,  The,  139. 
Chicago,  The,  240. 


CASES  CITED. 


477 


[The  figures  refer  to  pages.] 


China,  The,  30,  34,  37,  264,  265. 
China  Mut.  Ins.  Co.  v.  Ward,  50. 
Chusan,  The,  95,  109,  111. 
Circassian,  The,  102,  12S,  b58. 
City  of  Alexandria,  The,  185. 
City  of  Brockton,  The,  249. 
City  of  Chester,  The,  139. 
City  of  Clarksville,  The,  308. 
City  of  Columbus,  The,  312. 
City  of  Dundee,  The,  36. 
City  of  Hartford,  The,  370. 
City  of  Lincoln,  The,  290. 
City  of  Macon,  The,  238. 
City  of  Norwalk,  The,  210. 
City  of  Norwich,   The,   320,   321, 

325-327. 
City  of  Panama,  The,  187. 
City  of  Paris,  The.  142. 
City  of  Philadelphia  v.  Gavagnin, 

260. 
City  of  Reading,  The,  36,  265. 
City  of  Tawas,  The,  332,  346,  351. 
Clandebooye,  The,  139. 
Clara,  The,  261. 
Clara  Davidson,  The,  255. 
Clarita,  The,  119,  124,  261. 
Clark  v.  Insurance  Co.,  64. 
Clarke  v.  Coal  Co.,  198. 
Clans  v.  Steamship  Co.,  189. 
Clydach,  The,  253. 
i  lyde  Nav.  Co.  v.  Barclay,  258. 
Coburn  v.  Insurance  Co.,  95. 
Coffin  v.  Jenkins,  358. 
Colin  v.  Davidson,  160. 
Colima,  The,  174,  313,  316. 
Colorado,  The,  227,  228. 
Columbia,  The,  210,  322. 
Columbian  Ins.  Co.  v.  Ashby,  40. 

v.  Catlett,  61. 
Commander  in  Chief,  The,  357. 
Compania      de     Navigacion      La 

EPlecha  v.  Brauer,  155. 
Conqueror,  The,  288. 
Constable  v.  Steamship  Co.,  149. 
Cooley  v.  Board.  29,  30,  33. 
Cooper  v.  Reynolds,  .';.V>. 
Cope  v.  Dry-Dock  Co.,  13,  128. 
t  'opelin  v.  Insurance  <  !o.,  86. 
Corsair,  The,  201,  209,  355. 


Cory  v.  Patton,  55. 
Coyne  v.  Caples,  296,  297. 
Craig  v.   Insurance   Co.,   64,  310, 

311,  319. 
Crocker  v.  Jackson,  62. 
Crossman  v.  Burrill,  165. 
Crow  v.  Myers,  162,  163. 
C.  S.  Butler,  The,  139. 
Culliford  v.  Gomila,  158. 
Currie  v.  Insurance  Co.,  81. 
Cushing  v.  Laird,  355. 
Cushman  v.  Ryan.  361. 
Cutting  v.  Seabury,  209. 
C.  Vanderbilt,  The,  20. 
Cynthia,  The,  361. 

D 

Dago,  The,  190. 

Daisy  Day,  The,  48. 

Dan,  The,  150. 

Dan  Brown,  The,  348. 

Daniel  Ball,  The,  10. 

Daniel  Kaine,  The,  294,  295. 

Daniel  Steinman,  The,  137. 

David  Reeves,  The,  209. 

Davidson  v.  Baldwin,  301. 

Davis,  The,  355. 

Davison  v.  Von  Lingen,  158,  161. 

Daylesford,  The,  193. 

De  Bay,  The,  134. 

Delaware,  The,  169,  213.  246. 

Delaware  Mut.  Safety  Ins.  Co.  v. 

Gossler,  51,  78,  89. 
Del  Norte,  The,  111. 
De  I.ovio  v.  Boit,  17,  48. 
Des  Moines,  The.  287. 
Des  Moines  &  M.  R.  Co.,  Ex  parte, 

364. 
De  Vaux  v.  Salvador,  .2. 
D,.  Wolf  \.  Harris,  293. 
Dexter,  Tin'.  233. 

v.  Arnold,  361. 
Diana,  Til''.  239. 
Dibble  v.  Morgan,  154. 
Disney  v.  ETurness,  Withy  &  Co., 

162. 
i  »oi  .  n    v.    Steamship    Rossmore 

Co.,  it:.. 


47S 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Dodge  Healy,  The,  362. 
Dole  v.  Insurance  Co.,  76. 
Doolittle  v.  Knobeloch,  19. 
Dora,  The,  335,  339,  340. 
Douse  v.  Sargent,  311. 
Dudgeon  v.  Pembroke,  59. 
Dupont  De  Nemours  v.  Vance,  47. 
Dutton  v.  The  Express,  122. 
Dwyer  v.  Steamship  Co.,  189. 
Dygden,  The,  139. 


Eads  v.  The  H.  D.  Bacon,  361. 

E.  A.  Hamill,  The,  287. 

E.  A.  Packer,  The,  241. 

E.  A.  Shores,  Jr.,  The,  173. 

Eastern    Transp.    Line    v.    Hope, 

123. 
Easton,  Ex  parte,  10,  20. 
E.  B.  Ward,  Jr.,  The,  210. 
Eclipse,  The,  298,  354,  355. 
Edam,  The,  137. 
Edith,  The,  366. 
Edwards  v.  Elliott,  107,  204. 
Egbert  v.  Insurance  Co.,  71.    - 
Egypt,  The,  127,  134,  308. 
Electron,  The,  105,  111. 
Elfrida,  The,  141. 
Elin,  The,  344. 
Eliza  B.  Emory,  The,  297. 
Elizabeth  Jones,  The,  291. 
Eliza  Jane,  The,  95. 
Ella,  The,  93,  95. 
Ellen  Holgate,  The,  94,  98. 
Ellora,  The,  129. 
Elton,  The,  190. 
E.  Luckenbach,  The,  244. 
Emily  B.  Souder,  The,  118. 
Emily  Souder,  The,  94,  96. 
Epsilon,  The,  209. 
Erastina,  The,  124. 
Erinagh,  The,  20. 
Escanaba,  The,  345. 
Etona,  The,  176. 
Eugene,  The,  20. 
Eureka,  The,  329. 
E.  V.  McCauley,  The,  124. 


Excelsior,  The,  222. 
Express  Co.  v.  Caldwell,  153 


Fabre  v.  Steamship  Co.,  286. 

Fairgrieve  v.  Insurance  Co.,  85. 

Falcke  v.  Insurance  Co.,  126. 

Fannie,  The,  244. 

Fannie  Brown,  The,  129,  137. 

Farragut,  The,  259. 

Faxorita,  The,  215. 

Felice  B.,  The,  338. 

Fern  Holme,  The,  50, 

Fifty  Thousand  Feet  of  Lumber, 

In  re,  128. 
Florence,  The,  130. 
Flower  v.  Bradley,  37. 
Fort  Wayne,  The,  335,  347. 
Fosdick  v.  Schall,  98. 
Francis,  The,  94. 
Frank  G.  Fowler,  The,  348. 
Frankland,  The,  278,  283. 
Frazer  v.  Cuthbertson,  296,  300. 
Free  State,  The,  243. 
Freestone,  The,  344. 
Fretz  v.  Bull,  357. 
Frey,  The,  174. 
Furnessia,  The,  189.     * 
Fyenoord,  The,  215. 


Galatea,  The,  239. 
Gamma,  The,  240. 
Garland,  The,  210. 
Garnett,  Ex  parte,  102,  106,  205. 

In  re,  10. 
Gas  Float  Whitton  Case,  129. 
Gas  Float  Whitton  No.  2,  The,  14. 
Gate  City,  The,  244,  246. 
Gazelle,  The,  159,  162. 
General  Cass,  The,  13. 
General  Jackson,  The,  95. 
General    Mut.    Ins.    Co.    v.    Sher- 
wood, 71. 
General  Palmer,  The,  140. 
General  Smith,  The,  98,  102. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


479 


Genesee  Chief,  The,  10,  204. 
George  Bell,  The,  226. 
Geo.  L.  Garlick,  The,  320. 
George  T.  Kemp,  The,  114. 
George  W.  Childs,  The,  260. 
Georgia,  The,  98. 
Gibson  v.  Small,  58. 
Gilbert  Knapp,  The,  114. 
Gilchrist  v.  Insurance  Co.,  85. 
Giles  Loring,  The,  313,  321,  326. 
Glaholm  v.  Barker,  312,  330. 
Glannibanta,  The,  258. 
Glendale,  The,  209,  370. 
Glengyle,  The,  136. 
Glenmavis,  The,  153. 
Glide,  The,  99,  203,  371. 
Gokey  v.  Fort,  309,  313,  320,  323. 
Goodrich  Transp.  Co.  v.  Gagnon, 

312. 
Gordon,  Ex  parte,  200. 
Gould  v.  U.  S.,  126. 
Gov.  Ames.  Tbe.  140. 
Grace  Girdler,  Tbe,  271. 
Grand  Turk,  The,  26. 
Grant  v.  Poillou,  354. 
Grapeshot,  The,  87,  90,  97. 
Gratitude,  Tbe,  346. 
G.  K.  Bootb,  Tbe,  154. 
Great  Pacific,  Tbe,  89. 
(Jreat  Western,  Tbe,  312,  320,  329. 
Great  Western  Ins.  Co.  v.  Fogar- 

ty,  80. 
Greenville,  Tbe.  366. 
Greenwood  v.  Town  of  Westport, 

180. 
Greta  Holme,  Tbe,  289. 
Grimsley  v.  Hankins,  186. 
Groves  v.  Volkart.  162. 
Guadeloupe,  The,  176. 
Guiding  Star,  The,  96,  338. 
Guildball,  Tbe   153. 
Gulf  Stream,  The,  283. 
Gulnare,  The,  50,  71. 
Gypsum  Prince,  Tbe,  370. 


H 


Hall  v.  Railroad  Co.,  85. 

Hamilton,  Tbe,  286. 


Hamilton  v.  Pandorf,  154. 
Hammond  v.  Insurance  Co.,  26. 
Haney  v.  Steam-Packet  Co.,  259. 
Hanson  v.  Waller,  193. 
Harriet  Ann,  The,  95. 
Harrisburg,  Tbe,  200. 
Hart  v.  Railroad  Co.,  153. 
Hattie  M.  Bain,  Tbe,  116. 
Haugbton  v.  Insurance  Co.,  68. 
Haxby,  Tbe,  180. 
Hay  v.  Le  Neve,  274. 
Hazard  v.  Insurance  Co.,  52,  71. 
H.  B.  Foster,  The,  118. 
H.  C.  Grady,  The,  93. 
H.  D.  Bacon,  The,  127. 
Head  v.  Mfg.  Co.,  296,  297. 
Hearne  v.  Insurance  Co.,  60. 
Heatbcraig,  The,  25. 
Heaven  v.  Pender,  191. 
Helme  v.  Smith,  300. 
Hendrick  Hudson,  Tbe,  14. 
Hercules,  Tbe,  95,  223,  259,  260, 

268. 
Herman  v.  Mill  Co.,  182. 
Hermann,  The,  2SS. 
Hettie  Ellis,  The,  46. 
II.  E.  Willard,  The,  354. 
Heye  v.  North  German  Lloyd,  46. 
Hezekiah  Baldwin,  The,  13. 
Highland  Ligbt,  Tbe,  200,  209. 
Hill   Mfg.   Co.   v.   Steamsbip   Co., 

315. 
Hiram  R.  Dixon,  Tbe,  98. 
Hobson  v.  Lord,  42. 
Holmes  v.  Kailroad  Co.,  190,  209. 
Hooper  v.  Robinson,  49. 
Hope,  Tbe.  48. 
Home   v.    George   H.    Hammond 

Co.,  iv  i. 
Hostetnr  v.  Park,  L46. 
I  Coward   Fire  ins.  Co.  v.  Trans 

portatioD  Co.,  77. 
H.  i'.  Baldwin,  The,  357. 
H.  s.  Pickands,  The,  L81. 
Hubbard  v.  Roach,  '."7. 
Hubgb  v.  Railroad  <'<>..  196. 
Hudson,  The,  281,  283,  :;<;<•■_ 

v.    insurance   •'"..   79,   80, 

i  18,  i  !'■'. 


480 


CASES   CITED. 


[Tbe  figures  refer  to  pages.] 


Humboldt   Lumber    Mfrs.   Asis'n, 

In  re,  210. 
Humphreys  v.  Perry,  153. 

I 

Ida  Campbell,  The,  210. 
Illinois,  The,  19,  301. 
Ilos,  The,  357. 
Imperial,  The,  123. 
ludraui,  The,  188,  189. 
International  Nav.  Co.  v.  Insur- 
ance Co.,  50,  82,  84. 
Iona,  The,  165. 
louides  v.  Insurance  Co.,  75. 

v.  Pender,  55. 
Iredale  v.  Insurance  Co.,  43. 
Irma,  The,  335. 
Irrawaddy,  The,  46,  171. 
Isaac  Allerton,  The,  127,  140. 
Isaac  H.  Tillyer,  The,  122. 
I  sea,  The,  122. 
Island  City,  The,  128. 
Ivanhoe,  The,  215. 

J 

Jackson  v.  Insurance  Co.,  161. 
Jakobsen  v.  Springer,  279. 
James  v.  Brophy,  156. 
James  Bow  en,  The,  239. 
James  H.  Shrigley,  The,  22. 
Jane  Gray,  The,  210. 
Janet  Court,  The,  127,  138. 
Java,  The,  259,  272. 
J.  C.  Pfluger,  The,  118. 
Jeremiah,  The,  348. 
Jersey  City,  The,  189. 
J.   E.  Rumbell,  The,  27,  94,  103, 

341. 
Jerusalem,  The,  338. 
Jewell,  The,  143. 
J.  L.  Bowen,  The,  127. 
Job  T.  Wilson,  The,  186,  279. 
John  Buddie,  The,  254. 
John  C.  Sweeny,  The,  179. 
John  G.   Stevens,   The,  341,  343, 

350. 
John  H.  Cannon,  The,  46. 


John  H.  Pearson,  The,  158. 
John  Fridgeon,  Jr.,  The,  259. 
John  R.  Penrose,  The,  289. 
Johnson  v.  Elevator  Co.,  181. 
John  Wesley,  The,  127. 
Joice  v.  Canal  Boats,  366. 
Jones  v.  Andrews,  362. 

v.  Nicholson,  73. 
Jordan  v.  Banking  Co.,  148. 

v.  Insurance  Co.,  80. 
Joseph,  The,  105. 
Joseph  B.  Thomas,  The,  188. 
Joseph  John,  The,  188. 
J.  P.  Donaldson,  The,  43. 
Julia  Blake,  The,  91. 
J.  W.  Tucker,  The,  346,  351. 

K 

Kalorama,  The,  92-94. 

Karnak,  The,  90. 

Kate,  The,  93,  105,  112,  174,  286. 

Key  City,  The,  95,  365. 

Keystone,  The,  358. 

Khedive,  The,  254. 

Killeena,  The,  132,  133. 

Kimberley,  The,  127. 

Kirkland,  The,  217. 

Kirkwood  v.  Miller,  283. 

Kish  v.  Cory,  165. 

Knott  v.  Worsted  Mills,  172. 

Koebel  v.  Saunders,  60 


La  Bourgogne,  The,  262. 
Lady  Wimett,  The,  123. 
Laidlaw  v.  Navigation  Co.,  210. 
Lamar  v.  The  Penelope,  128. 
Lamb  v.  Parkman,  150,  358. 
Lamington,  The,  143,  208. 
Larch,  The,  295. 
Laura  Lee,  The,  286. 
Laverty  v.  Clausen,  314. 
Lawrence  v.  Platboat,  14. 

v.  Minturn,  47,  71,  318. 
L.  C.  Waldo,  The,  241. 
Learned  v.  Brown,  296. 
Leathers  v.  Blessing,  187. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


481 


Le  Jonet,  The,  130. 

Leland,  The,  290. 
v.  Medora,  366. 

Le  Lion,  The,  261. 

Leon  v.  Galceran,  99. 

Leonard,  In  re,  311. 

Leonard  Richards,  The,  323. 

Leovy  v.  U.  S.,  11. 

Leverington,  The,  252,  253. 

Lidgett  v.  Secretan,  09. 

Lillie  Laurie,  The,  335,  336. 

Lindrup,  The,  362. 

Liscard,  The,  68. 

Little  v.  Hackett,  192. 

Liverpool  &  G.  W.  S.  Co.  v.  In- 
surance Co.,  84,  150. 

Livietta,  The,  142. 

Lizzie  Henderson,  The,  222. 

Lizzie  Merry,  The,  297. 

London  Assurance  v.  Cornpanhia 
De  Moagens  Do  Barreiro,  68. 

London  Merchant,  The,  136. 

Long  Branch,  The,  97. 

Ixmgford,  The,  143. 

Long  Island  X.  S.  Pass.  &  Freight 
Transp.  Co.,  In  re,  209. 

Long  Island  R.  Co.  v.  Killien,  249. 

Lord  v.  Steamship  Co.,  310,  315. 

Lord  Derby,  The,  193. 

Lottawanna,  The,  7,  10,  101-103, 
205. 

Loughin  v.  McCaulley,  329. 

Louisiana,  The,  19. 

Louisville    Underwriters,    In    re, 
364. 

Lowber  v.  Bangs,  157,  161. 

Lucas  v.  Brooks,  363. 

Lucille,  The,  243,  291. 

Ludgate  Hill.  The,  98. 

Lydla,  The,  128. 

Lyndhurst,  The,  ill. 

Lyon  v.  Mells,  58. 

M 

Mabey,  The,  271,  371. 

Mac,  The,  13. 

McAndrew  v.  Adams,  162. 

McCaulley  v.  Philadelphia,  266. 

HUGIIES.AD.-Ul 


McConnochie  v.  Kerr,  142. 
McDonald  v.  Mallory,  207. 
McKiulay  v.  Morrish,  358. 
McLanahan  v.  Insurance  Co.,  55, 

5'J. 
McNiel,  Ex  parte,  30,  203. 
Macomber  v.  Thompson,  24. 
McPhail  v.  Williams,  313. 
McRae  v.  Dredging  Co.,  13,  104, 

111. 
Madras,  The,  118. 
Magdalen,  The,  139. 
Maggie  J.  Smith,  The,  291. 
Magnolia,  The,  10. 
Mahar  &  Burns,  The,  239. 
Main,  The,  115,  326. 
Major  William  H.  Tantum,  The, 

41. 
Maltby  v.  A   Steam  Derrick,  14. 
Manhasset,  The,  209,  258. 
Manitoba.  The.  175.  23S,  274. 
Marcardier  v.  Insurance  Co.,  72, 

73. 
Marcellus,  The,  33. 
March,  The,  162. 
Marengo,  The,  296. 
Margaret,  The,  123,  215. 
Margaret  B.  Roper,  The,  235. 
Margaret  J.  Sanford,  The,  2S8. 
Marguerite,  The,  24::.  346. 
Maria  Martin,  The,  274. 
Maria  &  Elizabeth,  The,  330. 
Marine  ins.  Co.  of  Alexandria  v. 

Tucker,  62. 
Marion  S.  Harris,  The,  95. 
Marion  W.  Page,  The,  242. 
Mariska,  The.  2.sl\  285. 
Mark  Laue,  The,  116. 
Marpesia,  The,  271.  :i'u. 
Marquardt  v.  French,  18. 
Martello,  The  -J--'."..  228. 
Mail  in  v.  Insurance  Co.,  61. 
Mary  A.  Randall,  The;  L66. 
Mary  A.  Tryon,  The,  124. 
Marj  Augusta,  The,  237. 
Marj  Bell,  The,  93. 
Mary  E.  Dana,  The,  137. 
Mary  Gratwlck,  The,  26. 
Mary  Powell,  The,  -17. 


482 


CASES   CITED. 


[The  figures  refer  to  pages.] 


.Mary  Stewart,  The,  181,  190. 

Mason  v.  Enine,  36. 

Maude,  The,  128. 

Max  Morris,  The,  193,  208. 

Mayflower,  The,  97. 

Mediana,  The,  288. 

Meehan  v.  Valentine,  35,  36. 

Memphis  &  C.  R.  Co.  v.  Reeves, 

290. 
Mercantile  S.  S.  Co.  v.  Tyser,  76. 
Merchants'  Mut.  Ins.  Co.  v.  Bar- 
ing, 50. 
v.  Lyman,  55. 
Merchants'  &  Miners'  Transp.  Co. 

v.  Hopkins,  244. 
Mexican  Prince,  The,  176. 
Mexico,  The,  245. 
Meyer,  In  re,  313,  327. 
Miami,  The,  186,  192. 
Milan,  The,  277. 

Milanese,  The,  229. 

Miller  v.  U.  S.,  360. 

Milwaukee,  The,  234. 

Minna,  The,  22,  357. 

Minnehaha,  The,  118. 

Minnie,  The,  261. 

Minnie  C.  Taylor,  The,  242. 

Minturn  v.  Maynard,  19. 

M.  M.  Caleb,  The,  272. 

Mobile  &  M.  R.  Co.  v.  Jurey,  85. 

Mollie,  The,  360. 

Montana,  The,  150,  151. 

Montapedia,  The,  24. 

Montgomery  v.  Henry,  297. 
v.  Insurance  Co.,  40. 
v.  Wharton,  297. 

Monticello,  The,  224. 

Moore  v.  Underwriters,  58. 

Moran  v.  Sturges,  360. 

Moreton  v.  Hardern,  36. 

Moses  v.  Packet  Co.,  173. 

Mount  Hope,  The,  123. 

Mourne,  The,  240,  248,  255. 

M.  P.  Rich,  The,  357. 

Murray  v.  Currie,  190. 

M.  Vandercook,  The,  336. 

Myers  v.  Willis,  301. 

Mystic,  The,  339. 


N 

Nacoochee,  The,  291. 

Nahor,  The,  237. 

Nantes  v.  Thompson,  51. 

Nathaniel  Hooper,  The,  147,  14S. 

Nebraska,  The,  95. 

Negaunee,  The,  230. 

Neil  Cochran,  The,  179. 

Nelson   v.   Woodruff,   152. 

Neptune,  The,  91,  325. 

Nestor,  The,  298. 

Nevada,  The,  259. 

New  England,  The,  361. 

New   England   Mut.   Marine   Ins. 

Co.  v.  Dunham,  17,  48. 
Newman  v.  Walters,  131. 
New  Orleans  Ins.  Co.  v.  Albro  Co., 

73. 
Newport  News,  The,  251. 
New  York,  The,  245,  248,  279,  370. 
New  York  Bowery  Fire  Ins.  Co.  v. 

Insurance  Co.,  54. 
New  York  C.  &  H.  R.  Co.  v.  Lock- 

wood,  153. 
New  York  P.  &  N.  R.  R.  Co.   v. 

Cooper,  192. 
Niagara,  The,  56,  149,  174,  279. 
Nicaragua,  The,  156. 
Nichols,  The,  291. 
Niobe,  The,  122. 
Niphon,  The,  23. 
Non  Pareille,  The,  256. 
Norma,  The,  143. 
Normandie,  The,  287. 
North  Cambria,  The,  210. 
North  Carolina,  The,  139. 
Northern  Belle,  The,  145. 
North  of  England  Iron  S.  S.  Ins 

Ass'n  v.  Armstrong,  82. 
Northrop  v.  Gregory,  361. 
North  Star,  The,  274,  275,  284. 
Northwester,  The,  128. 
Northwestern    Car   Co.    v.    Hop- 
kins, 361. 
Norwegian  S.  S.  Co.  v.  Washing- 
ton, 115. 
Norwich  &  N.  Y.  Transp.  Co.   v. 

Wright,  205,  304,  312. 
Nugent  v.  Smith,  150. 


CASES   CITED. 


4i3 


[The  figures  refer  to  pages.] 


Oades  v.  Pfohl,  158. 
Oakes  v.  Richardson,  20. 
O'Brien  v.  Miller,  90,  324,  358. 
v.  1,(314  Bags  of  Guano,  364. 
v.  Stephens,  355. 
Occidental  &  O.  S.  S.  Co.  v.  Smith, 

2o2. 
Ocean  Belle,  The,  297. 
Oceanic,  The,  33. 
Ocean  Spray,  The,  22,  23. 
Ogdensburgh,  The,  239. 
Ogemaw,  The,  262. 
Ohio,  The,  249. 
Ole  Oleson,  The,  299. 
Oler,  The,  11. 
Oliver,  The,  222.  253,  261. 
Olsen  v.  Navigation  Co.,  184. 
Olympia,  The,  272. 
Omer,  The,  90,  345. 
Onoko,  The,  210,  290. 
Oporto,  The,  248,  251. 
Oregon,  The,  33,  210,  222. 
Orient  Ins.  Co.  v.  Adams,  71,  81. 
Orient  Mut.  Ins.  Co.  v.  Adams,  77. 
Orleans,  The,  295,  297. 
Oscanyan    v.    Winchester    Arms 

Co.,  66. 
Oscar  Townsend,  The,  262. 
Osprey,  The,  212. 


Tacific   Coast   S.   S.    Co.   v.    Ban 

croft-Whitney  Co.,  357. 
Pacific  Mail  S.  S.  Co.  v.   Mining 

Co.,  40. 
Packet  Co.  v.  Clough,  363. 
Palmer  v.  Shipping  Co.,  2S3. 
Panama  R.  Co.  v.  Shipping  Co., 

180,  208. 
Pandorf  v.  Hamilton,  74. 
Paragon,  The,  333. 

.lie,  The,  262. 
Patapeco,  The,  93. 
Patapsco  ins.  Co.  v.  Coulter,  73 
Pederson  v.  Bpreckles,  123. 
Pekin,  The,  240,  241,  251. 
Pennsylvania,  The,  217,  228. 


People's  Ferry  Co.  of  Boston  v. 

Beers,  106. 
Perkiomen,  The,  229. 
Peters  v.  Insurance  Co.,  72. 
Peyroux  v.  Howard,  9. 
Phenix  Ins.   Co.,   Ex  parte,  206, 

311. 
Philadelphian,  The,  222,  358,  371. 
Philadelphia  &  Havre  de  Grace 
Steam  Towboat  Co.  v.  Railroad 
Co.,  1S3. 
Philadelphia  &  R.  R.  Co.  v.  Bar- 
nard, 1-19. 
Phoenix  Ins.  Co.,  Ex  parte,  181. 
Pickup  v.  Insurance  Co.,  58. 
Pile  Driver  E.  O.  A.,  14. 
Pilot,  The,  298. 

Pioneer  Fuel  Co.  v.  McBrier,  14(5. 
Piper   Aden   Goodall   Co.,    In   re, 

173. 
Plummer  v.  Webb,  192,  209. 
Plymouth,  The,  181. 
Plymouth  Rock,  The,  97.  ^ 
Pope  v.  Insurance  Co.,  56. 
Porter  v.  The  Friendship,  128. 
Post  v.  Jones,  370. 
Potomac,  The,  83,  288. 
Potter  v.  Insurance  Co.,  71. 
Powell  v.  Gudgeon,  78. 
Premier,  The,  210. 
Princess  Alice,  The,  118. 
Professor  Morse,  The,  179. 
Providence,  The,  289. 
Providence   Washington   Ins.   Co. 

v.  Bowring,  50. 
Providence  &  N.  Y.  S.  S.  Co.   v. 

Mfg.  Co.,  308,  330. 
Prussia,  The,  1  l('>- 
Public  Bath  No.  13,  The,  14. 


Quarman  v.  Burnett,  122. 
Quebec  S.  S.  Co.  v.  Merchant,  186. 
Queen,  The  95,  152,  186,  279,  365. 
Queen  of  the  Orwell,  The,  268. 
Queen  of  the   Pacific,  The,   153, 

:;.">T. 
Quickstep,  The,  122. 
Quinlan  v.  Pew,  31  i.  316. 


4S4 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Ralsby,  The,  143. 

Raleigh,  The,  26. 

Kalli  v.  Troop.  44. 

Ratata,  The,  124. 

Ravenscourt,  The,  124. 

Raymond  v.  Tyson,  157. 

Rebecca,  The,  147,  308. 

Red   ''R"   S.  S.  Co.  v.  Transport 

Co.,  163. 
Relf  v.  The  Maria,  24,  325. 
Relief,  The,  131. 
Republic,  The,  319. 
Resolute,  The,  27,  360. 
Revens  v.  Lewis,  294. 
Reward,  The,  118. 
Rhondda,  The,  251,  253. 
Richelieu  &  O.  Nav.  Co.  v.  Insur- 
ance Co.,  56,  86. 
Richmond  v.  Copper  Co.,  353. 
Richmond  &  D.  R.  Co.  v.  McFad- 
den,  152. 
v.  Payne,  153. 
Roach  v.  Chapman,  107,  203. 
Roanoke,  The,  46. 
Robert   Graham   Dun,    The,    222, 

2.35. 
Robert  R.  Kirkland,  The,  298. 
Robertson  v.  Baldwin,  24. 
Robinson  v.  Navigation  Co.,  208. 
Rockaway,  The,  224. 
Rock  Island  Bridge,  In  re,  180. 
Rogers  v.  Insurance  Co.,  71. 
Rolf,  The,  236. 
Rose  Culkin,  The,  242. 
Rosedale,  The,  279. 
Ross,  In  re,  25. 

v.  Transportation  Co.,  263. 
Roymann  v.  Brown,  189. 
R.  R.  Kirkland,  The,  260. 
Ruckman  v.  Insurance  Co.,  78. 
Rundell   v.    La    Compagnie   Gen 
erale  Transatlantique,  210. 


Sagers  v.  Nuckolls,  36. 

Saginaw,  The,  288. 

St.  Jago  de  Cuba,  The,  91. 


St.  Johns,  The,  330. 
St.  Joseph,  The,  117. 
St.  Lawrence,  The,  102. 
St.  Nicholas,  The,  210. 
St.  Paul,  The,  143. 

St.  Paul  Fire  &  Marine  Ins.  Co. 
v.  Knickerbocker  Steam  Tow- 
age Co.,  50. 

Saluda,  The,  33. 

S.  A.  McCaulley,  The,  311,  329. 

Sampayo  v.  Salter,  148. 

Samuel  v.  Assurance  Co.,  70. 

Samuel  Marshall,  The,  93,  94,  104. 

Samuel  Morris,  The,  346. 

Sanders  v.  Munson,  158. 

Sandringham,  The,  127,  137,  138, 
140,  143. 

San  Fernando,  The,  47. 

Santipore,  The,  142. 

Sapphire,  The,  261. 

Saracen,  The,  352. 

Sarah  Ann,  The,  95,  365. 

Saratoga,  The,  131,  189. 

Sarmatian,  The,  212,  259. 

Saylor  v.  Taylor,  13,  21,  105,  335, 
339,  351. 

Scaramanga  v.  Stamp,  61,  161. 

Schmidt  v.  Keyser,  165. 

Schwartz  v.  Insurance  Co.,  64. 

Scotia,  The,  115,  243. 

Scotland,  The,  205,  311,  321,  329. 

Seabrook  v.  Raft  of  Railroad 
Cross  Ties,  15. 

Seagrave  v.  Insurance  Co.,  50. 

Sea  Gull,  The,  200,  209. 

Seaman  v.  Insurance  Co.,  71. 

Seamans  v.  Loring,  68. 

Seamen  v.  Adler,  149. 

Sea  Witch,  The,  339,  345. 

Seguranca,  The,  115. 

Selina,  The,  335. 

Shaw  v.  Thompson,  365. 

Shawe  v.  Felton,  69. 

Sheppard  v.  Taylor,  325. 

Sherlock  v.  Ailing,  202. 

Shield  v.  Wilkin,  162. 

Shubert,  The,  33. 

Sideracudi  v.  Mapes,  33,  34,  37. 

Silvia,  The,  175. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


48i 


Sir  William  Armstrong,  The,  127, 

141. 
Slayton,  Ex  parte,  329. 
Smith  v.  Burnett,  ISO. 

v.  Dart,  1G2. 

v.  Towboat  Co.,  122. 

v.  Voss,  253. 
Snark,  The,  1S3,  2G6. 
Snow  v.  Carruth,  149. 

v.  Edwards,  361. 

v.  Perkins,  46. 
Sorensen  v.  Keyser,  163. 
Southern  Log  Cart  &  Supply  Co. 

v.  Lawrence,  14. 
Spaulding,  The,  336. 
Spearman,  The,  215,  251. 
Spedden  v.  Koenig,  294,  300. 
Spiegel,  The,  251. 
Sprague  v.  140  Barrels  Flour,  127. 

v.  Thompson,  30. 
S.  Shaw,  The,  262. 
Stanton  v.  Richardson,  162. 
Stapp  v.  The  Clyde,  11. 
Star  of  Hope,  The,  41,  42. 
Staten  Island  &  N.  Y.  Ferry  Co.  v. 

The  Thos.  Hunt,  128. 
Steel  v.  Steamship  Co.,  57,  160. 
Steele  v.  Thacher,  192. 
Sterling,  The,  270. 
Stoomvaart   Maatschappy   Neder- 

land  v.  Navigation  Co.,  274. 
Stout  v.  Weedin,  24. 
Strabo,  The,  182. 
Strang  v.  Braduer,  35. 
Strathdon,  The,  306. 
Sturgis  v.  Boyer,  119. 
Sultana,  The,  22. 
Sun  Ins.  Co.  v.  Kountz  Line,  35. 
Sun    Mut.    Ins.    Co.    v.    Insurance 

Co.,  53,  67. 
Sunnyside,  The,  271. 
Susan,  The,136. 
Svendsen  v.  Wallace,  42. 
8.   W.  Downs,  The,  139. 
Swift,  The,  L83. 
Sybil.  The,  L27. 
Sydney  Cove,  The,  325. 
Sylph,  The,  291. 


Sylvan  Glen,  The,  209. 
Syracuse,  The,  123. 


T.  A.  Goddard,  The,  116. 
Tasmania,  The,  124. 
Taylor  v.  Brigham,  300. 

v.  Carry  1.  360. 

v.  Harwood,  372. 

v.  Steamship  Co.,  73. 
Taylor  Dickson,  The,  127. 
Thames  &  M.  Marine  Ins.  Co.  v. 

Hamilton,  74. 
Thingvalla,  The,  238. 
Thomas  Fielden,  The,  140. 
Thomas  Jefferson,  The,  9. 
Thomas  Melville,  The,  358. 
Thomas  Sherlock,  The,  95. 
Thus.  W.  Haven,  The,  127. 
Thompson  v.  Finden,  298. 

v.  Wooster,  360. 
Tiger,  The,  95. 
Tillie,  The,  217. 
Tom  Lysle,  The,  33. 
Topsy,  The,  25. 
Tornado,  The,  149. 
Towanda.  The,  209. 
Towle  v.  The  Great  Eastern,  131. 
T.  P.  Leathers,  The,  128. 
Transfer  No.  3,  The,  272. 
Transfer  No.  4,  The,  210. 
Trask  v.  Duvall,  149. 
Trave,  The,  229. 
Traveller,  The,  L38. 
Treasurer,  The,  147,  152. 
Tribune,  The,  20. 
True  Blue,  The,  138. 
Turbett  v.  Dunlevy,  192. 
Turner's  Case,  24. 

u 

Olyssea,  Tin'.  132. 
Dmbrla,  The  -j-J7.  228,  286  288. 
Dndaunted,  The,  L24,  iiM. 
I  'nioii    Ins.  ( !o.   v.  Smith.  59. 
T.   S.    v.   AM. mi.  24. 


4S6 


CASES   CITED. 


[The  figures  refer  to  pages.] 


U.  S.  v.  Ferry  Co.,  11,  14. 
v.  Hall,  266. 

Urania,  The,  37. 
Utopia,  The,  183,  266. 


Valencia,  The,  92,  93. 

Valletta  Dry  Dock  Case,  The,  13, 

15. 
Velocity,  The,  241. 
Vera  Cruz,  The,  199,  209. 
Vetaloro  v.  Perkins,  210. 
Victoria,  The,  124,  133. 
Victory,  The,   153,   215,  24o,  250, 

276. 
Vim,  The,  357. 
Vindobala,  The,  300. 
Virgin,  The,  90. 
Virginia  Ehrrnan,  The,  123. 
Virginia  &  T.  R.  Co.  v.   Sayers, 

153. 
Virgo,  The,  333,  336. 
Vortigern,  The,  160. 

w 

Wager  v.  Insimmce  Co.,  85. 

Waldo,  The,  300. 

Walker    v.     Transportation    Co., 
305. 

Wallace  v.  Insurance  Co.,  81. 

Ward  v.  The  Banner,  124. 
v.  Thompson,  18,  35. 

Waring  v.  Clarke,  9. 

Warkworth,  The,  314. 

Warner  v.  Boyer,  311. 

Warrior,  The,  130. 

Washburn  &  Moen  Mfg.  Co.  v.  In- 
surance Co.,  79,  86. 

Washington,  The,  278. 

Waterhouse  v.  Mining  Co.,  161. 

Waters  v.  Insurance  Co.,  72. 

Water  Witch  Co.,  The,  360. 

Watts  v.  Camors,  158. 

W.  B.  Cole,  The,  293. 

Weaver  v.  The  S.  G.  Owens,  97. 

Webb  v.  Peirce,  301. 


Webster  v.  Seekamp,  97. 
Weir  v.  Steamship  Co.,  160. 
West  v.  Insurance  Co.,  61. 
Western  Assur.  Co.  v.  Transpor- 
tation Co.,  84. 
West  Friesland,  The,  296. 
Whitcomb  v.  Emerson,  321,  322. 
Whitelaw,  In  re,  330. 
White's  Bank  v.  Smith,  293. 
Whitewash,  The,  249. 
Whitlieburn,  The,  174. 
W.  H.  Simpson,  The,  123. 
Willamette  Valley,  The,  187. 
Willard  v.  Doit,  364. 
William  Beckford,  The,  138. 
William  Churchill,  The,  235. 
Williamette,  The,  210. 
William  H.  Bailey,  The,  288. 
William  Lindsay,  The,  272. 
Win.  M.  Hoag,  The,  26,  27,  2S8. 
Williams,  The,  124. 
Willkommen,  The,  249. 
Wilmington,  The,  13. 
Wilson  v.  Ass'n,  33,  37. 

v.  McNamee,  30. 
Wood  v.  Insurance  Co.,  46. 
v.  Keyser,  163. 
v.  Pleasants,  61. 
Woodall  v.  Dempsey,  300. 
Woodrop-Sims,  The,  269. 
Woodruff  v.   One  Covered   Scow, 
13. 

Woodside  v.  Insurance  Office,  49, 
79. 

Wope  v.  Hemenway,  22. 

Wordsworth,  The,  42. 

Workman  v.  City  of  New  York, 
112. 

Worms  v.  Storey,  160. 

Worthington,  The,  262. 

Wortinan  v.  Griffith,  18. 

Wydale,  The,  210. 

Wyoming,  The,  338. 


Xantho,  The,  155. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


487 


Yankee,  The.  187. 
Yarmouth,  The,  251. 


Zadok,  The,  227,  228. 
Zane  v.  The  President,  18. 
Zeta,  The,  180. 


INDEX. 

[the  figures  refer  to  pages.] 


ABANDONMENT, 

see  "Marine  Insurance." 

ABATEMENT, 

survival  of  action  for  injuries  resulting  in  death,  194. 

ACCOUNTS, 

see  "Admiralty  Jurisdiction." 

ADMIRALTY  JURISDICTION, 

extent  of  under  constitution,  7. 

Includes  navigable  waters,  whether  tidal  or  not,  8,  178. 

test  of  navigability,  10. 

includes  canals,  11,  179. 

lakes  wholly  within  state,  11. 
Includes  the  simplest  craft,  as  scows,  dredges,  pile  drivers,  etc. 

12. 
does  not  include  floating  docks  permanently  fixed,  13. 

nor  buoys,  14. 

quaere  as  to  rafts,  15. 
test  of,  in  contract  and  tort  respectively,  16. 
none  over  mere  partnership,  18. 
none  over  mortgages  on  ships,  18. 
none  over  mere  accounts,  19,  354. 
none  over  preliminary  contracts,  19. 
extent  of,  over  wharfage,  20. 
extent  of,  over  watchmen,  20. 
over  contracts  of  seamen,  20. 
over  master's  claim  for  wages,  25. 
over  claims  for  pilotage,  37. 
over  general  average  contract,  47. 
over  contracts  of  marine  insurance,  48. 
none  over  shipbuilding  contracts,  106,  -03. 
over  contracts  of  affreightment,  146. 

HUGIIES.AD.  (48S)) 


490  INDEX. 

[The  figures  refer  to  pages.] 

ADMIRALTY  JURISDICTION— Cont'd, 
over  torts,  178  et  seq. 

petitory  and  possessory  suits  and  suits  for  partition,  297. 
none  over  equitable  titles,  354. 
courts  having  jurisdiction,  367. 

ADMIRALTY  LAW, 

origin  and  history,  1. 
the  English  admiralty.  2. 
sources,  4. 
works  of  authority  on,  4. 

ADMIRALTY  RULES, 
rules  of  practice,  443. 
fifty-ninth  rule,  366. 
twelfth  rule,  100. 

ADVANCES. 

giving  insurable  interest,  50. 
bottomry  bond  for,  87. 
priority  of  claims,  337. 

see  "Bottomry  and  Respondentia,"  "Supplies  and  Repairs. 

AFFREIGHTMENT, 
defined,  144. 

distinguished  from  charter  party,  144. 
implied  condition  of  seaworthiness,  145. 
implied  warranty  against  deviation,  145. 
mutual  remedies  of  ship  and  cargo,  146. 
lien  for  freight,  how  enforced  or  lost,  146. 
entirety  of  affreightment  contract,  147. 
freight  pro  rata  itineris,  148. 
when  ship  a  common  carrier,  149. 
bill  of  lading,  150. 

form  of,  151. 

how  far  negotiable,  151. 

what  conditions  legal  or  illegal,  153. 

exception  of  perils  of  the  sea,  154. 
the  Harter  act  of  February  13,  1893,  167. 

purpose  of,  166. 

applies  only  between  vessel  and  shipper,  169. 

applies  to  domestic  and  foreign  vessels,  172. 


INDEX.  491 

[The  figures  refer  to  pages.] 

AFFREIGHTMENT— Cont'd. 

liability  for  improper  loading  or  delivery,  but  not  for  negli- 
gent navigation,  173. 
effect  of  unseaworthiness  under,  174-177. 
see  "Charter  Parties." 

AMENDMENTS, 

see  "Pleading  and  Practice." 

ANSWER, 

see  "Pleading  and  Practice." 

APPEAL. 

process  of,  369. 
time  of  taking,  369,  457. 
facts,  how  far  reviewed,  370. 
new  evidence  on,  370,  458,  459. 
record  on,  460. 

ASSAULT, 

remedies  for,  447. 
see  "Torts." 

ATTACHMENTS, 

see  "1'leading  and  Practice." 

AVERAGE, 

particular  average,  83. 

see  "General  Average." 
BAIL. 

in  suits  in  personam,  443,  458. 

reduction,  445. 

BARRATRY, 

see  "Marine  Insurance." 

BILL  OF  LADING, 

see  "Affreightment" 
BONDS, 

to  release  vessel  from  arrest.  300,  434. 
In  attachment,  444. 

see  "Bottomry  and  Respondentia." 

BOTTOMRY  AND  RESPONDENTIA, 

bottomry  defined,  87. 

requisites  to  validity  of  bottomry  bond,  89. 


492  INDEX. 

[The  figures  refer  to  pages.] 

BOTTOMRY  AND  RESPONDENTIA— Cont'd, 
respondentia,  90. 
priority  of  claims,  339,  348. 
remedies  for,  448. 

see  "Maritime  Liens." 

BRIDGES, 

see  "Torts." 

BUOYS, 

see  "Admiralty  Jurisdiction." 

CANALS, 

see  "Admiralty  Jurisdiction." 

CANAL  TOLLS, 

maritime  character  of,  117. 
remedies  for,  117. 

CANCELLATION  CLAUSE, 
see  "Charter  Parties." 

CESSER  CLAUSE, 

see  "Charter  Parties." 

CHARTER  PARTIES, 

distinguished  from  affreightment  contracts,  144. 

defined,  155. 

construed  as  ordinary  contracts,  157. 

special  clauses,  157. 

"with  all  possible  dispatch,"  157. 

"now  sailed  or  about  to  sail,"  158. 

"1,100  tons  or  thereabouts,"  158. 

"Northern  passage,"  158. 

"guaranty  of  10,000  grain  quarters,"  158. 

"always  lie  and  discharge  afloat,"  159. 
conditions  implied, 

of  seaworthiness,  159. 

against  deviation,  161. 
cancellation  clause,  161. 
demurrage,  162. 

documents  to  be  signed  by  master,  1G4. 
cesser  clause,  165. 


INDEX.  493 

[The  figures  refer  to  pages.! 
COLLISION, 

history  of  navigation  rules,  211. 

different  systems  of  navigation  rules,  214. 

effect  of  local  rules  and  customs,  215. 

classes  of  vessels  affected  by  rules.  215. 

what  craft  are  steam  vessels,  216,  374,  391.  410.  420. 

"under  way,"  meaning  of.  216,  373,  392,  410. 

lights  for  vessels,  216,  375,  392,  410,  420. 

when  shown,  216,  217,  375.  392,  410.  420. 

presumptions  against  dark  vessel,  212.  217. 

unincumbered  steamers,  217,  375,  392,  410,  420. 

towing  steamers.  21S,  376,  393,  412,  421. 

special  lights,  219.  376. 

sail  vessels,  219,  377,  394,  412,  422. 

vessels  towed,  219,  377,  394.  412.  422. 

small  vessels,  220,  378,  394,  413,  422. 

pilot  vessels,  220,  379.  394,  423. 

fishing  vessels,  220,  3S0,  395. 

rafts  and  nondescript  craft,  221,  396.  413.  423. 

overtaken  vessels,  221,  382.  396,  426. 

flare-np  or  torch  light.  222,  383,  397,  414,  426. 

anchor  lights.  222,  383,  397,  413,  422. 

naval  lights,  383,  397,  404,  414,  424. 
fog  navigation,  223,  384.  398,  414,  424. 

signals  required,  223,  384.  398.  415,  424. 

what  constitutes  fog,  224. 

moderate  speed  required,  226,  385,  399.  416,  426. 

test  of  speed  as  to  steamers  and  sail  vessels,  226,  227. 

precautions  approaching  fog  bank,  228. 

steering  and  sailing  rules  inapplicable,  229. 
Steering  and  sailing  rules,  232,  386,  399,  416,  425. 

origin,  232. 

basis  of,  233. 

risk  of  collision,  233,  386,  :::»:>.  425. 

rules  regulating  sail  vessels,  234,  386,  399,  416.  425. 

rules  regulating  steamers,  237,  386,  400,  417.   120. 
the  port  helm  rule.  2.".7.  386,  400,  417,  425. 
danger  signals,  2-';'.».  401,  418. 
rounding  bends,  240,  401. 
tli,.  crossing  rule.  2ln.  387,  402,  417,  425. 


494  INDEX. 

[The  figures  refer  to  pages.] 

COLLISION— Cont'd. 

rule  regulating  steam  and  sail,  242,  387.  402,  417,  425. 
steam  may  assume  sail  will  keep  course,  242. 
the  wide  berth,  243. 
error  in  extremis,  243. 
rule  as  to  vessel  having  right  of  way,  245,  387,  388,  402,  417, 

426. 
crossing  ahead,  246,  388,  402. 
stop  and  back  rule,  247,  388,  403,  417,  426. 
rule  as  to  overtaking  vessels,  248,  38S,  403,  417,  426. 
narrow  channel  rule,  250,  388,  403,  418. 
narrow  channel  defined,  251. 
general  prudential  rule,  253,  389,  404,  418,  426. 

sound  signals,  257,  380,  404,  417. 
general  precaution  rule,  257,  389,  404,  419,  426. 
lookouts,  258,  389,  404,  419. 
anchored  vessels,  261. 
anchoring  in  channels,  261. 
collisions  with  wrecks,  265. 
the  "stand-by"  act,  267. 

distress  signals.  390,  404. 
the  international  rules,  374. 
the  coast  and  inland  rules,  391. 

dividing  lines  between  international  and  Inland  rules,  213,  407. 
the  lake  rules,  410. 
the  Mississippi  valley  rules,  420. 
remedies,  447. 

bringing  in  joint  tort-feasor,  465. 
see  "Damages." 

CONTRIBUTION, 

see  "Damages";  "General  Average." 

CONTRIBUTORY  NEGLIGENCE, 
see  "Death  Injuries";  "Torts." 

COSTS, 

how  far  discretionary  in  admiralty,  365. 
suits  in  forma  pauperis,  365,  441. 
stipulations  for,  450. 


index.  495 

[The  figures  refer  to  pages.! 
DAMAGES, 

in  personal  Injury  cases,  193. 
in  collision  casess  269. 

negligence  essential,  269. 
inevitable  accident,  270. 
one  alone  in  fault,  273. 
both  in  fault,  divided,  273. 

origin  of  rule  of  division,  275. 

rights  of  third  parties  when  both  In  fault,  278. 
contribution  between  colliding  vessels,  280,  300,  465. 

suit  against  both,  280. 

bringing  in  vessel  not  party,  2S0. 

independent  suit  281. 
measure  of,  when  loss  total,  286. 
measure  of,  when  loss  partial,  287. 

demurrage,  how  estimated,  288. 

interest  discretionary,  289. 

repairs,  289. 
Increased  damages  due  to  subsequent  storm,  290. 
error  in  extremis,  291. 

DEATH  INJURIES, 

common-law  doctrine  as  to  survival,  194. 

civil-law  doctrine,  195. 

continental  doctrine,  196. 

English  doctrine,  199. 

right  of  survival  dependent  on  statute,  200. 

under  state  statutes,  202. 

under  acts  of  congress,  204. 
law  governing  such  actions,  207. 
contributory  negligence  bars  recovery,  208. 
construction  of  particular  statutes,  209. 

DECREES, 

see  "Pleading  and  Practice." 

DEMURRAGE, 

see  "Charter  Parties." 

DEVIATION, 

see  "Affreightment";  "Charter  Parties":  "Murine  Insurance." 

DISTRESS  SIGNALS, 

rules,  390,  404. 


496  INDEX. 

[The  figures  refer  to  pages.J 
DREDGES, 

see  "Admiralty  Jurisdiction." 

DRY  DOCKS, 

see  "Admiralty  Jurisdiction." 

ERROR  IN  EXTREMIS, 

see  "Collision";  "Damages." 
EVIDENCE, 

federal  statutes  regulating  competency,  taking  depositions,  etc. 
435. 
see  "Appeal";  "Pleading  and  Practice." 
EXECUTION, 

see  "Pleading  and  Practice." 

FIFTY  PER  CENT.  RULE, 

see  "Marine  Insurance." 
FOG, 

see  "Collision." 

FOREIGNERS, 
see  "Seamen." 

FREIGHT, 

see  "Affreightment." 

GENERAL  AVERAGE, 

defined,  39. 

antiquity  and  nature,  40. 

jettison,  40. 

voluntariness  of,  stranding,  40. 

requisites  of,  41. 

unseaworthiness,  46. 

contribution,  47. 

priority  of  claims.  337. 
see  "Maritime  Liens." 
HARTER  ACT, 

see  "Affreightment." 

HYPOTHECATION, 

of  cargo,  90. 
of  vessel,  87. 
remedies,  448. 

see  "Bottomry  and  Respondentia." 


INDEX.  497 

[The  figures  refer  to  pages.] 

ILLEGAL  TRAFFIC, 

see  "Marine  Insurance." 

INEVITABLE  ACCIDENT, 
see  "Damages." 

INSURANCE, 

see  "Marine  Insurance." 

JETTISON. 

see  "General  Average." 

LAKES, 

see  "Admiralty  Jurisdiction." 

LIBEL, 

see  "Pleading  and  Practice." 

LIGHTS, 

see  "Collision." 

LIMITATION  OF  LIABILITY, 
origin  of  doctrine,  '602. 
federal  legislation  on,  303. 

policy  of.  304. 
tires,  liability  for,  305. 
contract  debts,  308. 
constitutionality  of  acts,  309. 
who  may  claim,  310. 

liabilities  against  which  limitation  may  he  claimed,  81L 
privity  or  knowledge  of  owner,  313. 

unseaworthiness,  314. 

knowledge  of  officer  or  employe,  319. 
voyage  as  the  unit,  320. 
liability  of  part  owners,  321. 
measure  of  liability,  321. 

estimating  value  of  vessel  and  freight.  32L 

surrender  of  res  free  from  liens,  3L"J. 
damages  from  injuring  vessel,  324. 
pending  freight,  3226. 
Balvage  and  insurance,  327. 
procedure,  32S,  4(r_'. 

time  for  claiming, 

method  of  claiming,  B29,  4G2. 

distribution,  330,  4G3. 

HUOHES.AD.—  32 


498  INDEX. 

[The  figures  refer  to  pages. j 
LIMITATIONS, 

statutes  of,  in  admiralty,  365. 
see  "Supplies  and  Repairs." 

MARINE  INSURANCE, 
defined,  47. 

admiralty  jurisdiction  over  contracts  of,  48. 
Insurable  interest  necessary,  48. 
effect  of  misrepresentation  or  concealment,  51. 
seaworthiness  implied,  56. 

what  constitutes  seaworthiness,  50. 

burden  of  proof  of  seaworthiness,  58. 

seaworthiness  in  time  policies,  59. 
implied  condition  against  deviation,  60. 

deviation  defined,  60. 

may  deviate  to  save  life,  61. 

distinction  between  deviation  and  change  of  voyage,  62. 
Implied  condition  against  Illegal  traffic,  63. 

effect  of  violating  revenue  laws  of  another  country.  65. 
the  policy,  66. 

beginning  and  end  of  risk,  67. 

perils  of  the  seas,  70,  74. 

barratry,  72. 

thefts,  73. 

all  other  perils,  74. 
doctrine  of  proximate  cause,  75. 
extent  of  loss,  78. 

actual  total  loss,  78. 

constructive  total  loss,  78. 

abandonment,  80. 

fifty  per  cent,  rule,  80. 

binding  effect  of  agreed  valuation,  82. 

particular  average,  83. 
underwriter's  right  of  subrogation,  84. 
sue  and  labor  clause,  85. 

MARINER'S  COMPASS,  373. 

MARITIME  CONTRACTS, 
defined,  16. 

seamen's  contracts,  20. 
marine  insurance,  48. 


INDEX  499 

[The  figures  refer  to  pages.] 

MARITIME  CONTRACTS— Cont'd. 

shipbuilding  contracts,  106. 
stevedore's  contracts,  113. 
towage,  117. 
salvage,  125,  140. 

MARITIME  LIENS. 

tor  seamen's  wages.  23. 

for  supplies,  repairs,  and  necessaries,  91. 

for  services  of  stevedores,  113. 

for  canal  tolls,  116. 

the  admiralty  lien  explained,  87. 

priorities  among,  331. 

relative  rank  according  to  their  nature,  332. 
seamen's  wages,  333. 
salvage,  335. 

materials,  supplies,  advances,  towage,  pilotage,  and  gen- 
eral average,  337. 
bottomry,  339. 
mortgage,  341. 
torts,  541. 
relative  rank  according  to  their  dates.  345. 
different  voyages,  345. 
claim   more  immediately  contributing  to  preserve  res, 

347. 
later  contract  to  tort,  348. 
two  torts,  348. 
relative  rank  as  affected  by  suit  or  decree,  351. 
see  "Bottomry  and  Respondentia." 
MASTER. 

right  to  libel  In  rem  for  wages  independent  of  statute,  25. 
under  state  statute,  26. 

see  "Ownership  of  Vessels";    "Pilotage." 

MATERIALS, 

priority  of  claims,  337. 

MATERIAL  MEN, 

see  "Supplies  and  Repairs." 

MISREPRESENTATION, 

see  "Marine  Insurance." 


500  INDEX. 

[The  figures  refer  to  pages.] 
MORTGAGES, 

see  "Admiralty  Jurisdiction";   "Maritime  Liens." 

NAVIGABLE  WATERS, 
denned,  10. 

obstructing  same  by  anchoring,  2(51,  426. 
removal  of  obstructions,  428. 
destruction  of  grounded  vessels,  429. 
see  "Admiralty  Jurisdiction." 

NAVIGATION, 

see  "Collision";   "Rules  of  Navigation." 

NECESSARIES, 

see  "Supplies  and  Repairs." 

NEGLIGENCE, 

see   "Affreightment";     "Collision";     "Damages";    "Death    Inju- 
ries"; "Pilotage";  "Torts";  "Towage." 

OWNERSHIP  OF  VESSELS, 

bill  of  sale,  how  far  necessary,  292. 

requisites  of,  292. 

recording  of,  293. 

registered  and  enrolled  vessels,  293,  294. 
part  owners  are  tenants  in  common,  294. 

no  lien  inter  sese  for  balance  of  accounts,  294. 

when  may  libel  vessel,  295. 

power  to  bind  each  other,  296. 

right  of  majority  to  use  vessel,  296. 

when  minority  may  use  vessel,  296. 

power  of  admiralty  court  to  sell  for  partition,  297, 

power  to  remove  master,  297. 

how  far  liable  for  vessel's  debts  or  torts,  298. 
see  "Limitation  of  Liability." 

PARTICULAR  AVERAGE, 
see  "Marine  Insurance." 

PARTNERSHIP, 

see  "Admiralty  Jurisdiction." 

PART  OWNERS, 

see  "Ownership  of  Vessels." 

PASSENGERS, 

right  to  salvage,  131. 
see  "Torts." 


INDEX.  501 

[The  figures  refer  to  page*.] 

PERILS  OF  THE  SEAS, 

see  "Affreightment";   "Marine  Insurance." 

PETITORY  OR  POSSESSORY  SUITS, 
process,  448. 

PILE  DRIVERS, 

see  "Admiralty  Jurisdiction." 

PILOTAGE. 

pilot  denned,  28. 
validity  of  state  pilot  laws,  28. 
care  required  of  pilot,  31. 
supersedes   master  in  navigation,  33. 
negligence,  liability  of  vessel.  34. 

liability  of  pilot  association,  34. 
jurisdiction  of  admiralty  over  claims  for  pilotage,  37. 
right  to  salvage,  130. 
priority  of  claims,  337. 
remedies.  37.  447. 

see  "Maritime  Liens." 

PLEADING  AND  PRACTICE, 

simplicity  of,  In  admiralty.  353. 

titles  cognizable,  354. 

proceedings  In  rem  and  In  personam,  354. 

binding  effect  of  in  rem,  355. 
rules  of  practice.  350,  443. 
the  libel.  350. 

who  may  be  libelant,  356. 

Joinder  of  libelants.  357. 

stating  part.  357,   1 1*>. 

amendments.  358,  450. 
cross  libels,  401. 
process,  350,  443,  445. 
release  of  vessel,  300.  434. 
appraisements  and  sales.  446. 
claim,  451. 
decrees  by  default.  360,   l">2. 

how  reopened.  H01,  456. 
the  defense,  861. 

by  exception,  36] .    154. 

by  answer,  3G1,  451,   152,   l.'iS. 


502  INDEX. 

[The  figures  refer  to  pagei.] 

PLEADING  AND  PRACTICE—  Cont'd. 

intervention,  454,  456. 

garnishees,  455. 

no  replication  necessary,  362,  459. 
tbe  trial,  362. 

evidence,  362-364,  435. 
failure  to  prosecute,  455. 
attachments,  364. 
funds  in  court,  455,  456. 
set-off,  364. 
limitations,  365. 
tender,  365. 
costs,  365,  450. 

suits  in  forma  pauperis,  441. 
sales,  456. 
references,  457. 
execution,  366,  449. 
bringing  in  joint  tort  feasor,  366. 
courts  having  admiralty  jurisdiction,  366. 
power  to  make  rules,  457. 
limitation  of  liability,  462. 

see  "Appeal." 
RAFTS, 

see  "Admiralty  Jurisdiction." 

RESPONDENTIA, 

see  "Bottomry  and  Respondentia." 
RULES  OP  NAVIGATION, 

international  rules,  374,  407. 

coast  and  inland  rules.  391,  407. 

lake  rules,  410. 

Mississippi  valley  rules,  420. 
see  "Collision." 
SALVAGE, 

distinguished  from  towage,  118. 

doctrine  based  on  public  policy.  125. 

not  dependent  on  contract,  126. 

defined,  127. 

instances  of  salvage  services,  127. 

nature  of  property,  128. 

degree  of  risk  necessary,  129. 


INDEX.  603 

[The  figures  refer  to  pages.] 

SALVAGE— Cont'd. 

persons  entitled  to  claim,  129. 
the  crew,  130. 
the  pilot,  130. 
the  tug,  131. 
passengers,  131. 
government  employes,  131. 
benefit  to  property  necessary.  132. 
the  amount  of  award,  133. 

the  elements  of  the  award,  134. 
actual  outlays,  134. 
bounty,  134. 

professional  salvors,  136. 
locality  of  service.  136. 
Increase  or  diminution  of  awards,  137. 
incidents  of  service  as  affecting  award,  137. 
danger.  137. 
values  at  risk,  138. 
skill  shown,  139. 
time  and  labor,  139. 
result.  140. 
how  far  salvage  contracts  binding,  140. 
apportionment  of  salvage,  141. 
averaging  award  on  ship,  cargo,  and  freight,  142. 
priority  of  liens.  335,  348. 
remedies  for,  448. 

see  "Maritime  Liens." 

scows. 

see  "Admiralty  Jurisdiction.*' 

SEAMEN, 

defined,  20. 

contracts  of,  favorably  construed.  22. 

statutory  provisions,  22. 

freight  as  mother  of  wages,  23. 

lien  for  wages,  23,  333. 

duty  of  obedience,  24. 

rule  as  to  enforcement  of  claims  against  foreign  vessels,  24 

right  to  salvage.  130. 

torts  against,  183. 


504  INDEX. 

(The  figures  refer  to  pages.] 

SEAMEN— Cont'd. 

priority  of  claims  for  wages,  333. 
remedies,  447. 

see  "Maritime  Liens." 

SEAWORTHINESS, 

see   "Affreightment";    "Charter  Parties";    "General   Average"; 
"Limitation  of  Liability";   "Marine  Insurance." 

SET-OFP, 

see  "Pleading  and  Practice." 

SHIPBUILDING, 

see  "Admiralty  Jurisdiction." 

SHIP'S  HUSBAND, 

insurable  interest,  50. 

see  "Ownership  of  Vessels." 

SOUND  SIGNALS, 
see  "Collision." 

STALENESS, 

see  "Supplies  and  Repairs." 

STATUTES, 

Virginia  act  of  1779  establishing  admiralty  courts,  8. 

Virginia  statute  giving  liens  on  vessels,  107. 

Harter  act  of  February  13,  1893,  167. 

"stand-by"  act  of  September  4,  1890,  267. 

Rev.  St.  §  4170,  as  to  form  of  bill  of  sale,  292. 

Rev.  St.  §  4192,  as  to  recording  bills  of  sale,  mortgages,  etc.,  293. 

Rev.  St.  §  4141,  as  to  place  of  registry,  293. 

Rev.  St.  §  4312,  as  to  enrollment,  294. 

Rev.  St.  §  4250,  as  to  removal  of  master,  297. 

international  rules  of  navigation,  374. 

Inland  and  coast  rules  of  navigation,  391. 

lake  rules  of  navigation,  410. 

act  of  March  3,  1899,  as  to  obstructing  channels,  426. 

Rev.  St  §§  4282-4289,  as  to  limiting  liability,  431. 

act  of  June  26,  1884,  as  to  limiting  liability,  433. 

Rev.  St  §  941,  as  to  bonding  vessels,  434. 

Rev.   St.  §§  858,   862-870,  875-877,   and  act  of   March  9,  1892, 

relating  to  evidence,  435. 
act  of  July  20,  1892,  as  to  suits  in  forma  pauperis,  441. 


INDEX.  505 


[The  figures  refer  to  pages.] 


STEERING  AND  SAILING   RULES, 
sec  ••Collision." 

STEVEDORE, 
denned,  113. 

maritime  nature  of  service.  113. 
remedies  against  vessel.  114. 
must  have  contract  with  vessel,  115. 

STRANDING, 

see  "General  Average." 

SUBROGATION, 

see  "Marine  Insurance." 

SUE  AND  LABOR  CLAUSE, 

see  "Marine  Insurance." 
SUPPLIES  AND  REPAIRS, 
material  men  defined,  91. 

lien  implied  in  foreign  port,  not  in  domestic,  91. 
presumption  against  lien  if  owner  present,  'J2. 
presumption  in  case  of  eliartered  vessels,  93. 
how  lien  waived  or  lost,  94. 
doctrine  of  staleness,  94,  103,  340,  347. 
advances,  90. 
necessaries  defined,  96. 

validity  of  state  statute  giving  lien  on  domestic  vessels.  98. 
history  of  and  changes  in  twelfth  admiralty  rule,  100. 
effect  of  owner's  presence  on  domestic  liens,  in:;, 
shipbuilding  contracts.  106. 

effect  on  foreign  vessels  of  state  statutes  giving  lien,  108. 
priority  of  claims,  337,  347. 
remedies,  447,  448. 

see  "Maritime  Liens." 

TENDER, 

see  "Pleading  and  Practice." 

THEFTS, 

tfarine  Insurance." 

TORTS, 

locality  the  test  of  Jurisdiction,  173. 
waters  Included,  its.  it:*. 
gtructurea  attached  to  Bhore  aol  Included,  no. 

wharves,  piers,  and  bridge    ,    178,   L82. 


506  INDEX. 

[The  figures  refer  to  pages.] 
TORTS— Cont'd. 

must  be  consummated  on  water,  180-182. 
detached  structures,   1N2. 
torts  arising  rroin  relation  of  ship  or  owner  to  crew,  1S3. 

when  the  fellow-servant  doctrine  applies,  184-1SU. 
torts  to  passengers,  ISO. 
torts  to  persons  rightfully  on  ship,  187. 
ship  not  liable  for  act  of  independent  contractor,  1S9. 
Imputed  negligence,  192. 
assaults,  192. 

contributory  negligence  as  affecting  right  of  recovery  and  meas- 
ure of  damages,  193. 
liability  of  owners,  298. 
priorities  of  claims,  341,  348. 

see  "Collision";    "Damages";    "Death  Injuries";    "Maritime 
Liens." 

TOWAGE, 

defined,  117. 

distinguished  from  salvage,  118. 

respective  liability  of  tug  and  tow  to  third  party  injured,  119. 

tug  not  a  common  carrier,  123. 

measure  of  care  required  of  tug,  123. 

for  whose  acts  tug  is  liable,  124. 

maritime  remedies  for,  124. 

priority  of  claims,  337. 

see  "Collision";   "Maritime  Liens." 
TUG. 

see  "Towage." 
WATCHMEN, 

see  "Admiralty  Jurisdiction." 
WHARF, 

see  "Torts." 

WHARFAGE, 

see  "Admiralty  Jurisdiction." 
WRECKS, 

see  "Collision." 


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4.  Construction  of  the  Contract. 

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1904.     693  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 


Chap. 

1.  Contract  in  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

6.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract. 


CG559-5 


Clark  on  Corporations. 

1907.     721  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 

6.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations— Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


C6559-6 


Clark's  Criminal  £atr>. 

1902.    517  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


C6559-7 


(£lark  s  Criminal  Procebure* 

1895.     665  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  and  a  "Handbook  of 
Contracts." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading — The  Accusation. 

6.  Pleading — The  Accusation. 

7.  Pleading — The  Accusation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence. 

L5.  Habeas  Corpus. 

( !6559  8 


(Crostpell  on  (Sxecutors  cmb 
Ctbmtmstrators* 

1897.     COG  pages.     $3.75  delivered. 
By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF    CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations— Set-off. 

25.  Evidence  and  Costs. 


C6559-9 


(faton  on  €quity. 

1901.     734  pages.     $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor    3d    Edition    Collier    on    Bankruptcy.    Co-Editor    American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


06559  1<> 


fetter  on  (£quthj. 

1895.     4G3  pages.     $3.75  delivered. 
By  NORMAN  FETTER. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Nature  and  Definition  of  Equity. 

2.  Principles  Defining  and  Limiting  Jurisdiction. 

3.  The  Maxims  of  Equity. 

4.  The  Doctrines  of  Equity. 

5.  The  Doctrines  of  Equity. 

6.  The  Doctrines  of  Equity. 

7.  Grounds  for  Equitable  Relief. 

8.  Property  in  Equity — Trusts. 

9.  Property  in  Equity — Mortgages,  Liens,  and  Assignments. 

10.  Equitable  Remedies. 

11.  Equitable  Remedies. 

12.  Equitable  Remedies. 

13.  Equitable  Remedies. 

14.  Reformation,  Cancellation,  and  Quieting  title. 

15.  Ancillary  Remedies. 


C6559-11 


©arbiter  on  Wills. 

1903.     726  pages.     $3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE    OF   CONTENTS. 

Chap. 

1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 

be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

10.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and   Contingent  Interests — Remainders 

—Executory  Devises. 

18.  ( Jonstruction — Conditions. 

19.  ( •.instruction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void — Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 
2::.  Election. 

24.   Rights  Of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


(Bcoroe  on  Partnership. 

1S07.     G16  pages.    $3.75  delivered. 
By  WILLIAM    GEORGE. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Definition  and  Establishment  of  Relation. 

2.  Kinds  of  Partnerships  and  Partners. 

3.  Characteristic  Features  of  Partnerships. 

4.  Implied  Rights  and  Liabilities  Inter  Se. 

5.  Articles  of  Partnership. 

6.  Rights  and  Liabilities  as  to  Third  Persons. 

7.  Actions  Between  Partners. 

8.  Actions  Between  Partners  and  Third  Persons. 

9.  Dissolution. 

10.  Limited  Partnerships. 

11.  Joint-Stock  Companies. 


CG559-13 


<S  terms  3nternattonal  £atr». 

1895.     478  pages.     $3.75  delivered. 

By  CAPT.  EDWIN  F.  GLENN, 

Acting  Judge  Advocate,  United  States  Army. 


TABLE    OF   CONTENTS. 

INTRODUCTION. 

Chap. 

1.  Persons  in  International  Law. 

2.  The  Commencement  of  States— Fundamental  Rights  and  Du- 

ties. 

3.  Territorial  Property  of  a  State. 

4.  Territorial  Jurisdiction. 

5.  Jurisdiction  on  the  High  Seas  and  Unoccupied  Places. 

6.  The  Agents  of  a  State  in  International  Relations. 

7.  Intervention. 

8.  Nationality. 

9.  Treaties. 

10.  Amicable  Settlement  of  Disputes. 

11.  International  Relations  in  War. 

12.  Effects  of  War— As  to  Persons. 

13.  Effects  of  War— As  to  Property. 

14.  Postliminium. 

15.  .Military  Occupation. 

1G.  .Means  of  Carrying  on  Hostilities. 

17.  Enemy  Character. 

18.  Non-Hostile  Relations. 

19.  Termination  of  War. 

20.  Of  Neutrality  in  General. 

21.  The  Law  of  Neutrality  between  Belligerent  and  Neutral  States. 

22.  Contraband. 
l>::.  Blockade. 

24,   \  isii  and  Search,  and  Right  of  Angary. 
Appendix. 


CC.V.'J    i  t 


fyak  on  bailments  anb 
Carriers. 

1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE   OF   CONTENTS. 

Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges, 

5.  Bailments  for  Mutual  Benefit — Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


C6559— 15 


fyah  on  damages. 

1896.     476  pages.     $3.75  delivered. 

By  WM.  B.  HALE, 

Author  of  ''Bailments  and  Carriers." 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

0.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph   Companies. 
111.   Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Heal  Property. 
1  I.   P.reach  of  Marriage  Promise. 


C0u.j0-16 


£)ak  on  (Eorts. 

1896.     G3G  pages.     $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liahility  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


C6559-17 


f)opktns  on  Heal  Property. 

1896.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF  CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity — Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional    Life   Estates. 

6.  Estates  as  to  Quantity — Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less    than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 

10.  Equitable  Estates. 

11.  Estates  as  to  Time  of  Enjoyment — Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

1 1.  Legal  Capacity  to  Hold  and  Convey  Realty. 
15.  Restraints  on  Alienation. 
10.  Title. 


C6559-18 


f)uc$es  on  Ctbrmmlty. 

1901.    504  pases.     $3.75  delivered) 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF    CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respondentia  ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

i 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(6)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  20,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


CG559-19 


I^ugfyes  on  ^ebcral 
3urtsbtctton  anb  Procedure* 

1904.    034  pages.     $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  George 
Washingtou  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introduction — What  it  Comprehends. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District     Court — Criminal     Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court — Bankruptcy. 
6-8.  Same — Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 

10.  The  Circuit  Court — Original  Jurisdiction. 

11-12.  Same — Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 

14-15.  Same — Continued. 

10.  The  Circuit  Court — Jurisdiction  by  Removal — Original  Juris- 
diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Court3  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction-^The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction — The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U.  S.  Supreme  Courl  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


C6559-20 


3ngersoll  on  Public 
Corporations. 

1901.     738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  University  of  Tennessee  School  of  Law. 


TABLE   OF   CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 
Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal   Corporations. 

6.  Their  Creation — How— By  What  Bodies— Subject  to  What  Re- 

strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employes. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Parks,  and  Public  Buildings. 

16.  Torts. 

17.  Debts,  Funds,  Expenses,  and  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Coi-porations. 


CG559-21 


3aggctrb  on  (Torts. 

1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE    OF   CONTENTS. 

Part  1.— IN  GENERAL. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CG5.7J-22 


IHcKefoeu  on  (£» 

tbcnce. 

1907.     540  pages.     $3.75  deliv 

?red. 

By  JOHN  JAY  McKELVEY,  A. 

M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 

TABLE   OF  CONTENTS. 

Chap 

1. 

Introductory. 

2. 

Judicial  Notice. 

3. 

Questions  of  Law  and  Questions  of  Fact. 

4. 

Burden  of  Proof. 

5. 

Presumptions. 

6. 

Admissions. 

7. 

Confessions. 

8. 

Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 
Logically  Relevant. 

9. 

Character. 

10. 

Opinion  Evidence. 

11. 

Hearsay. 

12. 

Witnesses. 

13. 

Examination  of  Witnesses. 

14. 

Writings. 

15. 

Demurrers  to  Evidence. 

C6559-23 


Horton  on  Bills  cmb  Hotes. 

1900.     600  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 

Third   Edition:    By   Francis   B.   Tiffany. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


06559  24 


5 

fytpmcm  on  Common^ 

1895.     615  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B 
Second  Edition. 

£cxip 

TABLE    OF   CONTENTS. 

Chap 

. 

1. 

Forms  of  Action. 

2. 

Forms  of  Action. 

3. 

The  Parties  to  Actions. 

4. 

The  Proceedings  in  an  Action. 

5. 

The  Declaration. 

6. 

The  Production  of  the  Issue. 

7. 

Materialty  in  Pleading. 

8. 

Singleness  or  Unity  in  Pleading. 

9. 

Certainty  in  Pleading. 

10. 

Consistency  and  Simplicity  in  Pleading. 

11. 

Directness  and  Brevity  in  Pleading. 

12. 

Miscellaneous  Rules. 
Appendix. 

C6559-25 


Sfytpman  on  Equity 

Pleabtncj. 

1897. 

644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  ' 

'Shipman's  Common-Law   Pleading." 

TABLE   OF   CONTENTS. 

Chap 

1. 

Equity  Pleading 

'  in  General. 

2. 

Parties. 

3. 

Proceedings  in  i 

in  Equitable  Suit. 

4. 

Bills  in  Equity. 

5. 

The  Disclaimer. 

6. 

Demurrer. 

7. 

The  Plea. 

8. 

The  Answer. 

9. 

The  Replication. 

C6559  26 


Smith's  (Slcmcntary  £au\ 

1896.     3G7  pages.     $3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE    OF   CONTENTS. 
Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 
1G.  Title  to  Real  Property. 

17.  Personal  Property. 

18.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


C6559-27 


(Tiffany  on  cTgency. 

1903.     609  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  -'Law  of  Sales,"  etc. 


TABLE    OF   CONTENTS. 
Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratification. 

4.  What  Acts  Can  be  Done  by  Agent— Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person — Contract. 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 

15.  Duties  of  Agent  to  Principal. 

16.  Du1  les  of  Principal  to  Agent. 

Appendix. 


CUSu'J  28 


(Tiffany  on  Persons  anb 
Domestic  delations. 

1S9G.    5S9  pages.    $3.75  delivered. 
By  WALTER  C.  TIFFANY. 


TABLE    OF   CONTENTS. 


Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part   4.— INFANTS,   PERSONS    NON    COMPOTES    MENTIS 
AND   ALIENS. 

1-1.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part   5.— MASTER   AND    SERVANT. 

16.  Creation  and  Termination  of  Relation. 


CU559-29 


(Ctffcmy  on  Sales. 

1908.     534  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

(Harvard.) 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

nut  Specific. 

5.  Fraud,  and  Retention  of  Possession. 

6.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act. 


C655&-30 


Vance  on  3nsurcmce* 

189G.     GS3  pages.     $3.75  delivered. 

By  WILLIAM  REYNOLDS  VANCE, 

Professor  of  Law  in  the  George  Washington  University. 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  rules  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  much 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover,— 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment. 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire   Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insurance. 
Appendix. 


CG5.j9-31 


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